Exhibit 10.36
CONSULTING AGREEMENT
This Agreement is made and entered into the 19th day of
January, 1999, by and between Paradigm Medical Industries, Inc., a Delaware
corporation (the "Company"), and Win Capital Corp., a New York corporation (the
"Consultant").
In consideration of and for the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Purpose. The Company hereby retains the Consultant during
the term specified in Section 2 hereof to render consulting advice to the
Company as is reasonably required by the Company, upon the terms and conditions
as set forth herein.
2. Term. This Agreement shall be effective for a period (the
"Consulting Period") commencing as of the date of this Agreement and ending on
the one-year anniversary of the date of this Agreement.
3. Duties of Consultant. During the Consulting Period, the
Consultant will provide the Company with such regular and customary consulting
advice as is reasonably requested by the Company, provided that the Consultant
shall not be required to undertake duties not reasonably within the scope of the
consulting advisory services contemplated by this Agreement. In performance of
these duties, the Consultant shall provide the Company with the benefits of his
best judgment and efforts. It is understood and acknowledged by the parties that
the value of the Consultant's advice is not measurable in any quantitative
manner, and that the Consultant shall be obligated to render advice, upon the
request of the Company, in good faith. The Consultant's duties may include, but
will not necessarily be limited, to advice with regard to formulating a plan for
the reduction of expenses of the Company and an increase in revenues of the
Company. The Consultant shall report to Xxxxxx Xxxxxx.
4. Consultant's Liability. In the absence of negligence or
willful misconduct on the part of the Consultant, or the Consultant's breach of
this Agreement, the Consultant shall not be liable to the Company, or to any
officer, director, employee, partner or creditor of the Company, for any act or
omission in the course of or in connection with the rendering or providing of
advice hereunder. Except in those cases where the negligence or willful
misconduct of the Consultant or the breach by the Consultant of this Agreement
is alleged and proven, the Company agrees to defend, indemnify and hold the
Consultant harmless from and against any and all liability (but not any fees or
expenses of any kind, including legal fees paid by the Consultant) which may in
any way result from services rendered by the Consultant pursuant to or in any
connection with this Agreement. Notwithstanding any contrary provision contained
in this Agreement, the indemnity provided for in this Paragraph 4 shall survive
any termination of this Agreement.
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5. Expenses. Subject to the prior approval of the
Company and upon receipt of appropriate supporting documentation, the Company
shall reimburse the Consultant for any and all reasonable out-of-pocket expenses
incurred by the Consultant in connection with services rendered by the
Consultant to the Company pursuant to this Agreement, including, but not limited
to, hotel, food and associated expenses, all charges for travel and
long-distance telephone calls and all other expenses incurred by the Consultant
in connection with services rendered by the Consultant to the Company pursuant
to this Agreement. Expenses payable by the Company under this Section 5 shall
not include allocable overhead expenses of the Consultant, including, but not
limited to, secretarial charges and rent.
6. Compensation. As compensation for the services to be
rendered by the Consultant to the Company pursuant to Section 3 hereof, the
Company shall pay the Consultant a consulting fee of $5,000 per month during the
Consulting Period. The initial monthly payment of the consulting fee described
in this Section 6 shall be due on the first business day of the first month
immediately following the month in which the initial closing of a private
placement of Series D Convertible Preferred Stock, $.001 par value per share, of
the Company occurs, and each subsequent monthly payment shall be due on the
first business day of each of the next eleven months thereafter.
7. Limitation Upon the Use of Advice and Services.
(a) No person or entity, other than the Company or
any of its affiliates, or any of their respective officers, directors,
employees, partners and authorized agents shall be entitled to make use of or
rely upon the advice of the Consultant to be given hereunder, and the Company
shall not transmit such advice to others, or encourage or facilitate the use or
reliance upon such advice by others, without the written prior consent of the
Consultant.
(b) Except as may be reasonably required for the
Consultant to perform his duties hereunder, at no time during the term of this
Agreement shall the Consultant, individually or jointly with others, publish,
disclose, use, or authorize anyone else to publish, disclose, or use, any secret
or confidential material or information relating to any aspect of the business
or operations of the Company that the Consultant learns about as a result of his
engagement hereunder, including, without limitation, any secret or confidential
information relating to the business, customers, trade or industrial practices,
trade secrets, technology or know-how of the Company.
(c) During the Consulting Period, the Consultant
shall not, without the prior written approval of the Company, directly or
indirectly solicit, raid, entice or induce any person who presently is, or at
any time during the Consulting Period shall be, an employee, director, partner
or officer of the Company or any of its affiliates, to become employed by the
Consultant or any of his affiliates; provided, however, that the limitations
contained in this subparagraph (c) shall not apply to any employee, director,
partner or officer of the Company or any of its affiliates employed by the
Consultant or any of its affiliates as of the date of this Agreement.
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8. Severability. Every provision of this Agreement is intended
to be severable. If any term or provision hereof is deemed unlawful or invalid
for any reason whatsoever, such unlawfulness or invalidity shall not affect the
validity of the remainder of this Agreement.
9. Representation by Counsel. All parties hereto acknowledge
that Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Wolosky LLP ("OGFRW") represented the
Company in connection with this Agreement and the transactions contemplated
hereby, and that OGFRW is not prohibited from representing the Company on any
matter in the future relating to this Agreement. The parties further acknowledge
that OGFRW advised the Consultant to seek independent counsel with respect to
this Agreement and the transactions contemplated hereby.
10. Miscellaneous.
(a) Any notice or other communication between the
parties hereto shall be sent by certified or registered mail, postage prepaid,
if to the Company, addressed to it at Paradigm Medical Industries, Inc., 1127
West 0000 Xxxxx, Xxxxx X, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: Chief Executive
Officer, or, if to the Consultant, addressed to it at 00 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000, or to such address as may hereafter be designated in
writing by one party to the other. Such notice or other communication shall be
deemed to be given on the date of receipt.
(b) This Agreement has been duly authorized, executed
and delivered by and on behalf of the Company and the Consultant.
(c) This Agreement shall be construed and interpreted
in accordance with the laws of the State of New York, without giving effect to
conflicts of laws rules of such state.
(d) It is agreed that the Consultant is an
independent contractor vis-a-vis the Company and shall have no authority to
execute instruments or act in any supervisory or other capacity on behalf of the
Company or to represent the Company as an officer or employee thereof.
(e) This Agreement and the rights hereunder may not
be assigned by either party (except by operation of law) and shall be binding
upon and inure to the benefit of the parties and their respective successors,
assigns and legal representatives.
(f) This Agreement may be executed in more than one
counterpart with the same effect as if the parties executing the several
counterparts had each executed one counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date hereof.
PARADIGM MEDICAL INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: CEO
WIN CAPITAL CORP.
By:
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Name:
Title:
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