Exhibit 10.2
00000 Xxxxxxx Xx. Xxx. 000 Tel 000.000.0000 E-mail Xxxxxxxxxx@xxx.xxx
Xxxxxxx, XX 00000 XXX Fax 000.000.0000 xxx.Xxxxxxxxxx.xxx
June 18, 2001
Xxxxxxx Xxxxxx, Ph.D. 1 Page Sent Via Fax: (000) 000-0000
00000 Xxxxxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Reference: Consulting Agreement between SurgiLight and Xxxxxxx Xxxxxx, Ph.D.
dated November 1, 2000.
Dear Xxxxxxx:
This agreement modifies our Consulting Agreement dated November 1, 2000 and our
first modification of the Agreement dated January 22, 2001. On behalf of
SurgiLight and J.T, Lin, Ph.D and in recognition of the increased duties we have
asked you to perform and our satisfaction with your work to date, we are pleased
to offer the following terms for your consulting services:
$10,000 per month and 3,500 options/month at a 10% discount These options must
be exercised within three years of the date you leave the Company. We will also
pay you 3% of the sale of the Ophthalmic Division. This proposal is beginning
May 15, 2001 and continuing through June 30, 2002. It is automatically renewed
for one-year increments thereafter until or unless a new agreement is accepted
by both parties,
On behalf of SurgiLight and its Board of Directors, I would like to take this
opportunity to thank you for your assistance, support and guidance. We all look
forward to working closely with you.
Sincerely,
/s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
Senior Vice President, COO
SurgiLight, Inc.
CC: Board of Directors
Corporate Contract File
00000 Xxxxxxx Xx. Xxx. 000 Tel 000.000.0000 E-mail Xxxxxxxxxx@xxx.xxx
Xxxxxxx, XX 00000 XXX Fax 000.000.0000 xxx.Xxxxxxxxxx.xxx
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into
effective as of the 1st day of November 2000 by and between SurgiLight, Inc., a
Florida corporation whose address is 00000 Xxxxxxx Xxxxx. Xxxxx 000, Xxxxxxx, XX
32S86 ("Company"), and Xxxxxxx Xxxxxx, Ph.D. an individual whose address is
00000 Xxxxxxxx Xx. Xxxx Xxxxxx, Xx 00000 ("Consultant").
R E C I T A L S
WHEREAS, Company desires to engage consultant to provide technical,
regulatory and operational support for it, its financial advisors and its
attorneys ("the Project" as defined below) and consultant desires to perform
said consulting services for the benefit of the company on the terms and
conditions set forth below;
NOW, THEREFORE, the parties hereby agree as follows:
1. CONSULTING SERVICES
a. The Company hereby retains the services of Consultant as an independent
contractor to render consulting services to the Company, as requested, in
connection with the Project. A description and schedule for the performance by
Consultant of such services, is annexed to this Agreement as Schedule A. It is
mutually understood and agreed that Consultant is at all times acting and
performing as an independent contractor, and neither the Consultant nor any
employees of the Consultant shall be deemed employees of the company.
b. Consultant agrees not to engage any employee, individual or entity to
assist Consultant in connection with the Project without the express written
consent of the Company. Further, any such employee, individual or entity for
which consent is granted shall agree in writing to be bound by the terms of this
Agreement.
c. Consultant agrees to comply with all reasonable requests of the Company
regarding coordination of consultant's services with the services of attorneys,
government officials, and other agents and representatives of the Company when
requested.
d. Consultant shall maintain a permanent written record of all services.
e. Nothing in this Agreement shall be construed to prevent Consultant from
engaging in any other business or activity consistent with the terms of this
Agreement.
2. COMPENSATION
Consultant agrees to perform the consulting services fur the Project, as
reasonably requested, and the Company agrees to pay the sums set forth in
Schedule A in consideration for such services. Consultant shall be reimbursed
for all reasonable business expenses incurred by Consultant in the performance
of her services under this Agreement that have been pre-approved by the Company
in advance and in writing. Consultant shall invoice the Company for such
pre-approved business expenses and be paid by the Company within two weeks of
the invoice date.
3. TERM
The term of this Agreement shall commence as of the effective date set
forth above and shall continue until December 31, 20011 whereupon the Agreement
shall terminate, unless terminated sooner in accordance herewith.
4. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
Consultant acknowledges that she will be receiving Confidential Information
of the Company in the rendering of her consulting services, As used herein, the
terms "Confidential 1nformation" is defined as information provided to
Consultant by the Company which the Company has stamped or otherwise indicated
in writing is "Confidential Information." Consultant agrees to hold the
Confidential information in confidence and not to use the Confidential
information commercially for her own benefit or for the benefit of anyone except
the Company. Consultant agrees to limit dissemination of and access to the
Confidential Information only to the persons who have agreed in writing to be
bound by the terms of this Agreement. The Provisions of this Section 5 shall
survive the termination of this Agreement for a period of one year. Nothing in
this Agreement shall prevent Consultant from using information which (i) was in
Consultant's possession or known by her before the date of this Agreement; (ii)
is or becomes generally known to the public; (iii) is obtained by Consultant
from a third party; or (iv) is or was independently developed by Consultant
without use of the Company's Confidential information.
5. REPRESENTATIONS AND WARRANTIES
Consultant hereby represents and warrants to Company the following:
a. Consultant has not entered into any contract or other arrangement, or
made any commitment that will or may impair Consultant's ability to perform her
services hereunder, and agrees that it will not enter into any such contract or
arrangement.
b. Consultant agrees, to the best of her knowledge, not to use or disclose
to the Company, or induce the Company to use, any confidential or proprietary
information, material or rights of any third party.
c. Consultant agrees to indemnify Company for claims arising from services
performed on behalf of the Company.
6. TERMINATION
a. In the event the Company or Consultant decides to terminate this
agreement of the Project prior to completion, as determined in the sole
discretion of the Company or Consultant, the Company or Consultant shall
communicate such decision to the other in writing as promptly as practicable,
and this Agreement shall terminate thirty (30) days after receipt of such
notification, in such event, Consultant shall be paid for all services rendered
and reimbursed for all pre-approved business expenses incurred through the date
of termination. The Company shall have no further obligations to Consultant
under this Agreement thereafter.
b. In addition to the right to terminate provided above, the Company or
Consultant may immediately terminate this Agreement upon the breach by
Consultant or Company as the case may be of any term or provision of this
Agreement, provided. however, nothing herein shall be construed to release or
relieve Consultant from a continuing obligation to the Company under this
Agreement or of any obligation matured prior to the effective date of such
termination.
7. GENERAL
a. All notices, requests, demands and other communications required or
permitted to be given under the terms of this Agreement shall be in writing and
shall be deemed to have been duly given if delivered personally, given by
facsimile, or mailed first class, postage prepaid or by registered or certified
mail.
b. Consultant shall have no claim under this Agreement or otherwise against
the Company relating to the Project for any employee benefits or withholding
obligations all of which shall be the sole responsibility of Consultant, The
parties further agree that nothing in this Agreement creates the relationship of
partnership, joint venture, sales agency or principal and agent, All financial
obligations associated with Consultant's business shall be the sole
responsibility of Consultant. The Consultant shall not enter into any agreements
or incur any obligations on the Company's behalf, or commit the Company in any
manner without the company's express prior written consent.
c. The terms and provisions of this Agreement shall be binding on
Consultant, and shall inure to the benefit of the heirs, legal representatives,
successors and assigns of the Company. This Agreement is not assignable or
transferable and any attempt of such assignment, in whole or in part, shall be
null and void.
d. This Agreement, including the Schedule(s) attached hereto, contains the
entire understanding and agreement of the parties, and there are no
representations, warranties, promises or undertakings other than those contained
in this Agreement. This Agreement does not supersede, affect nor cancel any
previous agreements, rights or obligations between the parties. No course of
conduct or dealing between the parties shall act as a modification or waiver of
any provision of' this Agreement, and only a modification or waiver which is
contained in a written agreement, signed by both parties, shall be effective.
e. This Agreement shall he governed and construed in accordance with the
laws of the State of Florida, U.S.A., and the parties agree that it is executed
and delivered in that stale.
f. Consultant acknowledges that there will be no adequate remedy at law for
her failure to comply with the terms of this Agreement. Accordingly, in the
event Consultant fails to comply with these terms, Consultant acknowledges and
agrees that the Company shall have the right to have any breach of this
Agreement remedied by equitable relief by way of a temporary restraining order,
preliminary injunction, permanent injunction, and such other alternative relief
as may be appropriate, without the necessity of posting any bond or surety.
g. Consultant and the Company agree that all disputes arising out of or
concerning the terms of this Agreement will be subject solely to binding
arbitration. The arbitrator selection and conduct of the arbitration will be
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association. The place of the arbitration shall be in Orange County, Florida and
judgment on the award may be entered in any court having jurisdiction thereof.
If either party believes it is necessary to undertake discovery on asserted
statutory claims, such party shall apply to the arbitrator or arbitrators for
rights to undertake discovery, and the arbitrator shall allow discovery
sufficient for either party to adequately arbitrate, vindicate, or defend the
statutory claims, including access to essential documents and witnesses. At the
conclusion of the arbitration, the arbitrator or arbitrators shall issue a
decision in writing setting forth the essential findings and conclusions, and
this decision is subject to review, confirmation, correction, or vacation
pursuant to the provisions Code of Civil Procedure 1285 through 1288.8 in effect
at the time the decision is rendered.
h. If any provision of this Agreement should be held to be void or
unenforceable, in whole or in part, such provision or part thereof shall be
treated as severable, leaving valid the remainder of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
DATED: 11/1/00 CONSULTANT:
-------
By: /s/ Xxxxxxx Xxxxxx
--------------------
Xxxxxxx Xxxxxx, Ph.D.
DATED: 11/1/00 SURGILIGHT, INC.
By: /s/ Xxxxxxx Xxxx
-------------------
Xxxxxxx Xxxx
Executive Vice President
Chief Operating Officer
SCHEDULE A -- Page 1
CONSULTING AGREEMENT
SCHEDULE A
Project:
Providing technical, regulatory and operational support, as reasonably
requested, for the Company, its financial advisors and attorneys. The
Consultant shall provide the Company a written outline of each project
including estimated number hours for completion, details and
milestones for completion and a final report at the conclusion of each
project. Each project shall be pre-approved in writing prior to
commencement of work, Should the Consultant need an extension to the
project, she must receive written approval.
Compensation:
$250.00 per hour
Consultant's Technology:
The Company and Consultant agree that Consultant has prior knowledge
and inventions which are not subject to the terms of this Agreement.
