HARVARD SCIENTIFIC CORP.
AND
XX. XXXXXX XXXXX
PAGE 1 OF 6
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT, is made and entered into on the date signed
below, by and between HARVARD SCIENTIFIC CORP., a Nevada corporation, with its
World Headquarters located at 000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxx, Xxxxxxx,
00000, hereinafter referred to as "HARVARD", and XX. XXXXXX XXXXX, 0000 Xxxxxxxx
Xxx., Xxxx. X, Xxxxx Xxxx, Xxxxxxxxxx, 00000, hereinafter referred to as
"CONSULTANT".
WHEREAS, HARVARD is a biopharmaceutical development company and has
developed and patented a treatment for impotency, male erectile and
male/female sexual dysfunction, which utilizes intraurethral delivery
of lyophilized liposomal prostaglandin E-1 ("PRODUCT"); and
WHEREAS, HARVARD has been issued Patent Number 5,718,917 from the U.S.
Patent and Trademark Office entitled "PGE-1 CONTAINING LYOPHILIZED
LIPOSOMES FOR USE IN THE TREATMENT OF ERECTILE DYSFUNCTION" ("PATENT");
and
WHEREAS, HARVARD desires to gain regulatory approval from the U.S. Food
and Drug Administration ("FDA") and similar worldwide regulatory
agencies for marketing and distribution of the Product; and
WHEREAS, HARVARD desires to have the benefits of CONSULTANT'S knowledge
and expertise as it pertains to gaining regulatory approval for the
PRODUCT; and
WHEREAS, CONSULTANT desires to assist HARVARD in its efforts to achieve
governmental and regulatory approval of the PRODUCT.
NOW, THEREFORE, TO MEMORIALIZE THE DISCUSSIONS BETWEEN HARVARD AND
CONSULTANT, it is the desire of HARVARD to engage the services of CONSULTANT for
various technical, regulatory and/or Good Manufacturing Practice ("GMP")
assignments as pertains to HARVARD'S PRODUCT. In consideration of the promises
and mutual covenants set forth herein, HARVARD and CONSULTANT, jointly referred
to as (the "PARTIES"), hereto agree to the terms set forth herein.
REPRESENTATIONS OF HARVARD
--------------------------
1) HARVARD represents and warrants that it has the full power and
authority to execute and deliver this AGREEMENT and to perform all of
its obligations herein; and
2) HARVARD represents and warrants it is not in violation or breach of
any non-compete or other agreements.
REPRESENTATIONS OF CONSULTANT
-----------------------------
1) CONSULTANT has the knowledge and expertise needed to assist HARVARD
in its efforts to qualify its PRODUCT for regulatory approval; and
2) CONSULTANT represents and warrants that it has the full power and
authority to execute and deliver this AGREEMENT and to perform all of
its obligations herein; and
3) CONSULTANT represents and warrants it is not in violation or breach
of any non-compete or other agreements.
CONSULTANT (INIT) /S/ MG HARVARD (INIT) /S/ TW
------ ------
HARVARD SCIENTIFIC CORP.
AND
XX. XXXXXX XXXXX
PAGE 2 OF 6
A) Responsibilities of HARVARD shall include, but are not necessarily limited
to:
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1) HARVARD agrees to provide CONSULTANT access as needed to all data,
records and files for its PRODUCT for use in CONSULTANT'S duties under
this AGREEMENT; and
2) HARVARD agrees that any misrepresentations made by HARVARD as to the
responsibilities of HARVARD shall result in, but, are not necessarily
limited to, the immediate termination of this AGREEMENT.
B) Responsibilities of CONSULTANT shall include, but are not necessarily limited
to:
--------------------------------------------------------------------------------
1) CONSULTANT shall render services as reasonably requested by HARVARD
which pertains to the PRODUCT; and
2) CONSULTANT shall coordinate and administer various technical and
regulatory duties regarding the manufacture and production of the
PRODUCT; and
3) CONSULTANT shall design and implement a GMP documentation system
which insures that all records and supporting documentation for the
various regulatory submissions as applicable for the PRODUCT will be
maintained under GMP compliance requirements; and
4) CONSULTANT shall devote all time necessary to fulfill his duties
under this AGREEMENT; and
5) CONSULTANT shall be an independent contractor and shall be free to
engage in other forms of employment or provide services to other
persons or firms; and
6) CONSULTANT agrees that any misrepresentations made by CONSULTANT as
to the responsibilities of CONSULTANT shall result in, but, are not
necessarily limited to, the immediate termination of this AGREEMENT.
1) TERM OF THIS AGREEMENT.
--------------------------------
This AGREEMENT shall be binding and in effect for a period of one (1)
year from the date of mutual execution, unless terminated by either PARTY after
thirty (30) days notice is given of any material breach of this AGREEMENT by the
other PARTY.
2) TIME AND EFFORTS.
--------------------------
CONSULTANT will at all times be faithful and industrious, 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
CONSULTANT'S office and/or place of business, although from time to time
CONSULTANT may be required to travel to such places as may be necessary 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 an unusual
hardship upon CONSULTANT.
CONSULTANT (INIT) /S/ MG HARVARD (INIT) /S/ TW
------ ------
HARVARD SCIENTIFIC CORP.
AND
XX. XXXXXX XXXXX
PAGE 3 OF 6
3) COMPENSATION.
----------------------
In full payment for CONSULTANT'S services, HARVARD shall pay to
CONSULTANT compensation determined in accordance with the terms below:
3.1 CONSULTANT shall receive a consulting fee of $15,000.00 (fifteen
thousand) per month to be payable in two (2) equal installments of
$7,500.00 (seven thousand, five hundred) on the 1st and 15th of every
month. CONSULTANT shall provide HARVARD an invoice for each payment
period for the term of the AGREEMENT.
3.2 CONSULTANT shall be entitled to receive additional consulting fee
of up to 25,000 (twenty five thousand) shares of HARVARD'S common stock
as additional compensation for services provided under this AGREEMENT.
Three thousand shares shall be payable on the first day of the initial
month under this AGREEMENT and shall be set forth on CONSULTANT'S
invoice for said period. Two thousand shares shall be payable and
included in CONSULTANT'S monthly invoicing for the remaining months
that this AGREEMENT is in effect, not to exceed 11 (eleven) months.
4) EXPENSES.
------------------
HARVARD shall reimburse CONSULTANT for all reasonable and necessary
business expenses incurred by CONSULTANT in the discharge of his duties.
Receipts for all travel and travel related expenses will be maintained by
CONSULTANT. An itemized expense report shall be submitted to HARVARD at the time
the expenses occur before reimbursement. Any expense which exceeds $500.00 (five
hundred) must be pre-approved by HARVARD in writing.
5) TERMINATION.
---------------------
CONSULTANT has no right to terminate this AGREEMENT except upon the
breach hereof by HARVARD. If, at any time, CONSULTANT breaches any material
obligation under this 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. Upon
termination, all of HARVARD'S and CONSULTANT'S confidential information and
solicitation shall survive the termination, breach or expiration of this
AGREEMENT.
5.1) Upon lawful termination in accordance with this AGREEMENT, the
maximum amount HARVARD may be liable to CONSULTANT for would be the
consulting fees fully earned under paragraphs 3.1 and 3.2 above and
expenses incurred by CONSULTANT in accordance with paragraph 4 above as
of the termination date.
6) TRADE SECRETS AND PROPRIETARY INFORMATION OF HARVARD.
---------------------------------------------------------
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: patentable inventions, scientific and
technological know-how, processes and compositions, research protocols and data,
client, CONSULTANT, employee, supplier and distributor lists, contacts,
addresses, information about employees and employee relations, training manuals
CONSULTANT (INIT) /S/ MG HARVARD (INIT) /S/ TW
------ ------
HARVARD SCIENTIFIC CORP.
AND
XX. XXXXXX XXXXX
PAGE 4 OF 6
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 its client's 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 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 "trade secret" or "confidential information" means all information
concerning HARVARD, clients of HARVARD, or any parent, subsidiary or affiliate
of HARVARD'S 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 from HARVARD'S or clients'
premises without prior written consent of HARVARD. CONSULTANT also agrees that
the remedy at law for breach of this paragraph is inadequate and 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.
7) RECORDS.
-----------------
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. 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 and
at the conclusion of this AGREEMENT, or upon Harvard's request, CONSULTANT will
promptly surrender the same to HARVARD.
8) DISPUTE RESOLUTION PROCEDURE.
--------------------------------------
In any and all disputes arising out of or related to this AGREEMENT of
whatever nature, including, but not limited to, tort and contract claims, the
termination of CONSULTANT'S employment, compensation, the terms and conditions
of this AGREEMENT, or the coverage of this dispute resolution procedure, shall
be resolved by binding arbitration before a retired judge in Washoe County,
State of Nevada.
9) 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 CONSULTANT of any provision of this AGREEMENT would cause
HARVARD irreparable injury and damage, the measure of which could not be
adequately measured at law. Accordingly, HARVARD 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 CONSULTANT. CONSULTANT hereby consents to the
granting of such injunctive or other equitable relief, provided notice is given
hereunder. The exercise by HARVARD of its rights hereunder shall not constitute
a waiver by HARVARD of any other rights which it any have to damages or
otherwise.
CONSULTANT (INIT) /S/ MG HARVARD (INIT) /S/ TW
------ ------
HARVARD SCIENTIFIC CORP.
AND
XX. XXXXXX XXXXX
PAGE 5 OF 6
10) CONSENT TO JURISDICTION.
---------------------------------
This AGREEMENT shall be governed by and construed in accordance with
the laws of the State of Nevada, the domicile of HARVARD, and the exclusive
venue for any arbitration arising out of this AGREEMENT, whether initiated by
HARVARD or CONSULTANT, shall be Washoe County, State of Nevada. All PARTIES
specifically agree to waive any jurisdictional venue or objection to Washoe
County that may otherwise exist.
11) NOTICE.
----------------
Any notices hereunder shall be in writing and shall be effective upon
personal delivery, or via facsimile, or five (5) 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: If to HARVARD to:
-------------------- -----------------
Xxxxxx Xxxxx Harvard Scientific Corp.
c/o Pyramid Labs., Inc. 000 Xxxxxxxx Xxxx
0000 Xxxxxxxx Xxx., Xxxx. X Xxxxx 000
Xxxxx Xxxx, XX 00000 Xxxx Xxxx, Xxxxxxx 00000
Ph: (000) 000-0000 Ph: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
12) ATTORNEY'S FEES.
-------------------------
In any and all disputes arising out of or related to this AGREEMENT, of
whatever nature, the prevailing PARTY shall be entitled to receive reimbursement
from the non-prevailing PARTY for all reasonable attorneys' fees and all other
costs incurred in connection with any arbitration proceeding and dispute
resolution procedure related thereto as referred to in paragraphs 8 and 10
above.
13) SEVERABILITY.
----------------------
If any term of provision of this AGREEMENT is or are held to be invalid
or unenforceable, the remaining portions of this AGREEMENT shall continue to be
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
on the face of the AGREEMENT, to the extent necessary to permit the maximum
enforceability or validity of the term or provision.
14) ENTIRE AGREEMENT.
--------------------------
This 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 AGREEMENT or as subsequently set forth in a writing
signed by the duly authorized representatives of all of 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 waived, in or by writing signed
by the PARTY against whom enforcement of any waiver, change or modification is
sought. This AGREEMENT supersedes all prior agreements and understandings
between the PARTIES whether written or oral.
CONSULTANT (INIT) /S/ MG HARVARD (INIT) /S/ TW
------ ------
HARVARD SCIENTIFIC CORP.
AND
XX. XXXXXX XXXXX
PAGE 6 OF 6
15) CONFIDENTIALITY.
-------------------------
The existence of this 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.
16) SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
----------------------------------------------------
All representations and warranties made herein shall survive the
execution of this AGREEMENT and the consummation of the transactions
contemplated herein.
17) BINDING EFFECT; ASSIGNMENT.
------------------------------------
This AGREEMENT shall be binding upon and inure to the benefit of the
PARTIES hereto and their respective personal representatives, heirs,
beneficiaries, successors and permitted assigns. HARVARD may assign its rights
or obligations under this AGREEMENT in its sole business discretion. CONSULTANT
may not assign its rights or obligations under this AGREEMENT without the prior
written consent of HARVARD.
18) COUNTERPARTS.
----------------------
This AGREEMENT may be executed in several counterparts, each of which
shall be deemed an original, but all of which shall only constitute one
instrument.
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT as
of the day and year first above written.
HARVARD SCIENTIFIC CORP. CONSULTANT
BY: /S/ XXXXXX X. XXXXX 6/16/98 BY: /S/ XXXXXX XXXXX 6/18/98
XXXXXX X. XXXXX DATE XXXXXX XXXXX DATE
PRESIDENT, CEO & CHAIRMAN
