CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made this 9th day of August, 1996
by and between Henry W. Poett III ("Consultant") and Meris Laboratories, Inc.
("Client").
1. Consulting Services and Period.
1.1 Services. Client hereby retains Consultant and Consultant
agrees to render to Client from time to time and at Client's
written request consulting services relating to the Client's
business as specified in Exhibit A.
1.2 Consulting Period. Unless sooner terminated pursuant to
Section 3 below, this term of this Agreement shall be the
period set forth in Exhibit A.
2. Compensation; Expenses.
2.1 Compensation. In consideration of the services to be rendered
hereunder, Consultant shall be paid consulting fees at the
rate set forth in Exhibit A.
2.2 Expenses. Client shall reimburse Consultant for reasonable
travel and other business expenses incurred by Consultant in
the performance of Consultant's duties hereunder, provided
that Client is notified in advance of Consultant's need to
incur such expenses and such expenses are approved by Client.
2.3 Invoices. Client shall submit monthly invoices for services
provided by Consultant hereunder, and for costs and expenses
to be reimbursed hereunder. Payments shall be due within ten
(10) days of receipt of Client's invoice.
3. Termination of Consulting Period.
This Agreement may be terminated by either party (i) on 90 days prior
written notice to the other or (ii) if the other party shall breach any
material term or provision of this Agreement and shall fail or refuse,
within thirty (30) days after receipt of written notice from the
non-breaching party regarding such breach, to take such action as may
be necessary to cure or remedy such breach.
4. Proprietary Information.
4.1 Defined. "Proprietary Information" is all proprietary and
confidential information of Client which pertains to the
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business or products of Client, or its customers, consultants
or business associates, which was or is obtained by Consultant
from Client. Notwithstanding the foregoing, Proprietary
Information shall not include: (i) information which is or
becomes publicly known through lawful means; (ii) information
that was rightfully in Consultant's possession or part of
Consultant's general knowledge prior to the Consulting Period;
(iii) information which is disclosed to Consultant without
confidential or proprietary restrictions by a third party; or
(iv) information which is independently developed or
discovered by Consultant.
4.2 Nondisclosure of Proprietary Information. Consultant agrees to
protect the confidentiality of the Proprietary Information and
not publish, disclose or otherwise make the same available to
any person without Client's prior written consent.
4.3 Reports. All reports and other written information furnished
by Consultant hereunder shall be the property of Client and
Client shall have the unrestricted right to use the same as
Client determines appropriate without obligation to a third
person.
5. Adverse Interests.
During the term of this Agreement, Consultant shall not enter to any
agreement, or perform any work for services for another or participate
in any activities, which may be adverse to the interests of Client. In
addition, during such period Consultant agrees not to undertake or
participate in any activity which is directly or indirectly in
competition with Client or its business.
6. Assignment; Successors and Assigns.
Neither Consultant nor Client shall assign this Agreement without the
prior written consent of the other party, which consent shall not be
unreasonably withheld. Subject to the foregoing, this Agreement shall
be binding upon and inure to the benefit of the parties hereto and
their respective heirs, legal representatives, successors and permitted
assigns, and shall not benefit any person or entity other than the
parties hereto.
7. Notices.
All notices or other communications required or permitted hereunder
shall be made in writing and shall be deemed to have been duly given if
delivered by hand or mailed, postage prepaid, by certified or
registered mail, return receipt requested, and addressed to Client at
2890 Zanker Road, San Jose, CA 95134 and Consultant at the address set
forth in Exhibit A. Notice of change of address shall be effective only
when done in accordance with this Section 7.
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8. Entire Agreement.
The terms of this Agreement are intended by the parties to be in the
final expression of their agreement with respect to the matters set
forth herein and may not be contradicted by evidence of any prior or
contemporaneous agreement. The parties further intend that this
Agreement shall constitute the complete and exclusive statement of its
terms and that no extrinsic evidence whatsoever may be introduced in
any judicial, administrative, or other legal proceeding involving this
Agreement.
9. Amendments; Waivers.
This Agreement may not be modified or amended except by an instrument
in writing, signed by Consultant and Client. By an instrument in
writing similarly executed, either party may waive compliance by the
other party with any provision of this Agreement that such other party
was or is obligated to comply with or perform, provided, however, that
such waiver shall not operate as a waiver of, or estoppel with respect
to, any other or subsequent failure. No failure to exercise and no
delay in exercising any right, remedy, or power hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, or power
provided herein or by law or in equity.
10. Governing Law.
The validity, interpretation, enforceability, and performance of this
Agreement shall be governed by and construed in accordance with the
laws of the State of California as such laws are applied to contracts
entered into and to be performed therein by residents thereof.
11. Independent Contractor.
Consultant shall operate at all times as an independent contractor of
Client, and is in no way considered an employee of the Client.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first written above.
CONSULTANT MERIS LABORATORIES, INC.
By: /s/ Henry W. Poett III By:/s/s William Neeley, M.D.
- --------------------------- -------------------------------------
Henry W. Poett III Medical Director & President
Title:-------------------------------
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EXHIBIT A
1. Consulting Services to be Provided.
Consultant shall provide consulting services with respect to
Client's business by assisting Client with respect to (i)
business and financial analysis and planning, and (ii) such
other tasks as Client and Consultant shall agree upon.
Consultant shall report to Client's President & CEO. Client's
President & CEO shall assign consulting tasks.
2 Term.
One year beginning August 9, 1996.
3. Consulting Fee Rate.
$150 per hour.
4. Address of Consultant.
Henry W. Poett III
401 Chapin Lane
Burlingame, CA 94010
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