Exhibit 4.1
CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement") is entered into this 31st day of
December, 2001, by and between SURGILIGHT, INC., a Florida corporation (the
"Company"), and X. XXXXXXX XXXXXXX ("Consultant").
1. Engagement of Consultant. The Company hereby engages Consultant to
assist the Company in legal services.
2. Compensation. As total and complete compensation for his services
provided herein, the Company shall issue to Consultant 177,948 shares ("Shares")
of the Company's restricted common stock ("Stock"), par value $.0001 per share.
3. Expenses. Company shall assume and shall be responsible for all expenses
incurred by Consultant and shall be responsible for all disbursements made in
Consultant's activities. Except as otherwise specifically authorized by the
President of the Company in advance, in writing, Consultant shall not incur on
behalf of Company, and Company shall not have, any liability for any expenses,
costs, and disbursements of Consultant. Consultant shall indemnify and hold
Company harmless from and against any and all claims, actions, or liability for
any expenses, costs, and disbursements, including attorneys' fees, of Consultant
or its agents, servants, contractors, or employees.
4. Term of Agreement. This Agreement shall commence on the date first set
forth above and shall continue in full force and effect for a period of one (1)
month. Either party, at its option, may terminate this Agreement prior to the
expiration of such one (1)-month period by providing the other party written
notice of intent to terminate not less than five (5) days prior to the effective
date of termination. Notwithstanding the foregoing, the Company may immediately
terminate this Agreement if Consultant materially breaches an obligation
hereunder.
5. Relationship of the Parties; Consultant's Limitations of Authority.
Except as otherwise specifically set forth in this Agreement, Consultant shall
have no authority to represent Company as an agent of Company. Consultant shall
have no authority to bind Company by any contract, representation,
understanding, act, or deed concerning Company. Except as otherwise specifically
set forth herein, neither the making of this Agreement nor the performance of
any part of the provisions hereof shall be construed to constitute Consultant as
an employee, agent or representative of Company for any purpose, nor shall this
Agreement be deemed to establish a joint venture or partnership. Consultant, in
all respects, shall be deemed an independent contractor with respect to the
performance by Consultant of its obligations hereunder.
6. Assignment. Neither this Agreement nor any of the duties or obligations
of Consultant herein may be voluntarily, involuntarily, directly, or indirectly
assigned, delegated, or otherwise transferred or encumbered by Consultant
without the prior, written approval of the Company. Any such assignment,
delegation, transfer, or encumbrance without such approval will be void and will
constitute a "material breach" of this Agreement entitling the Company to
terminate this Agreement immediately. A change in voting control of Consultant
shall be deemed an assignment of this Agreement. This Agreement is fully
assignable by the Company and shall inure to the benefit of any assignee or
other successor.
7. Miscellaneous Provisions.
7.1 Entire Agreement; Binding Effect. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter of this
Agreement and supersedes any prior agreements or understandings between the
parties. This Agreement shall be binding on and inure to the benefit of the
parties hereto and their respective successors and authorized assigns.
7.2. Modification. This Agreement may be modified only upon the
execution of a written agreement signed by both of the parties.
7.3 Waivers. No failure on the part of either party hereto to
exercise, and no delay in exercising, any right, power, or remedy hereunder
shall operate as a waiver thereof nor shall any single or partial exercise of
any right, power, or remedy hereunder preclude any other or further exercises
thereof or the exercise of any other right, power, or remedy.
7.4 Governing Law; Venue and Jurisdiction. This Agreement shall be
deemed to have been entered into in, and for all purposes shall be governed by,
the laws of the State of Florida, without regard to Florida's choice of law
decisions. The parties agree that any action brought by either party against the
other in any court, whether federal or state, shall be brought within Orange
County, Florida, in the applicable state and federal judicial districts and do
hereby waive all questions of personal jurisdiction or venue for the purpose or
carrying out this provision.
7.5 Attorneys' Fees. In the event of a dispute under this Agreement,
the non-prevailing party shall pay all of the prevailing party's reasonable
attorneys' fees and costs incurred in connection with any such action, including
post-judgment collection proceedings.
7.6 Severability. In the event that any provision of this Agreement,
in whole or in part (or the application of any provision to a specific
situation), is held to be invalid or unenforceable by the final judgment of a
court of competent jurisdiction after appeal or the time for appeal has expired,
such invalidity shall be limited to such specific provision or portion thereof
(or to such situation), and this Agreement shall be construed and applied in
such manner as to minimize such unenforceability. This Agreement shall otherwise
remain in full force and effect.
7.7 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original, but all of which, taken
together, shall constitute one and the same instrument.
In witness whereof, the parties hereto have executed this Agreement as of
the date and year first above written.
"COMPANY"
SURGILIGHT, INC.
By: /s/
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Xxxxxx X. Xxxxxxxxx,
Chairman Audit Committee
"CONSULTANT"
/s/
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X. Xxxxxxx Xxxxxxx
