CONSULTING AGREEMENT
This Consulting Agreement is made as of April 1, 2000 by and between
Cyndel & Co., Inc. ("Consultant") and Paradigm Medical Industries, Inc. (the
"Company").
1. Services
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Consultant shall provide advice and opinions to the Company on subjects
including but not necessarily limited to management issues, mergers and
acquisitions. Consultant will determine in its sole discretion time, place and
manner of the services it renders as well as the overall amount of time
Consultant expends in providing services under this Agreement. Such advice and
opinions will most often be given orally. However, the Company may occasionally
and reasonably request that advice or opinions be provided in writing.
2. Services Non-Exclusive
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Nothing in this Agreement shall be construed to prevent or restrict
Consultant from providing either similar or dissimilar services to or from
holding positions with any other corporation, organization or entity.
3. Independent Contractor Status
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Consultant's relationship to the Company is as an independent
contractor. The parties acknowledge that Consultant has no power to bind the
Company.
4. Compensation and Expenses
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The Company shall pay Consultant an annual consulting fee of
$200,000.00 during the term of this Agreement. This fee will be paid in equal
monthly installments on the first of each month, commencing April 1, 2000. The
Consultant's out-of-pocket expenses shall be reimbursed if approved in advance
by the Company and upon reasonable substantiation being provided thereafter.
5. Additional Compensation
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In addition to the compensation provided in Section 4 above, Consultant
shall be entitled to payment or other remuneration in the event it brings to the
Company a candidate for merger, acquisition, joint venture or other combination
or relationship and the Company enters into a business relationship with such
entity. Consultant and Company shall mutually agree to such compensation at the
time the Company decides to pursue a business relationship with such entity.
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6. Term and Termination
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(a) Term
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The term of this Agreement shall commence on April 1, 2000 and shall
terminate on March 31, 2001.
(b) Renewal
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This Agreement shall automatically renew for an additional, successive
one-year term unless either party delivers to the other on or before January 1
of the contract year then in effect notice of its intent not to renew. This
Agreement may be renewed in such manner for up to two additional years following
March 31, 2001.
(c) Early Termination
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This Agreement may be terminated prior to the end of the above stated
term only as follows: (1) by Consultant upon 30 days advance written notice to
the Company; or (2) by the Company, following 30 days from the date it gives
written notice to the Consultant of a material breach of this Agreement,
specifying the circumstances of the breach, and after which 30-day period the
breach has not been reasonably or substantially cured.
3. Guarantee
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The Company agrees to guarantee Consultant's compensation provided in
Section 4 of this Agreement except where the Company terminates this Agreement
in accordance with Section 6(c). This guarantee shall be due and payable under
all circumstances or conditions whether within or beyond the Company's control
and shall include but not be limited to any merger, acquisition, change in
control, cessation of business or dissolution of the Company.
4. Assignment
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The Company may assign its rights or delegate its duties under this
Agreement to any entity provided, however, that no such assignment shall be
permitted without Consultant's prior written consent if it would make any change
in any of either party's rights or duties under this Agreement, or if it would
create a material risk that Consultant might not receive all of the benefits
promised under this Agreement. Except as otherwise provided herein, any
attempted assignment in contravention of this Section shall be void.
5. Confidential Information
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Consultant understands that it may be given access to confidential
proprietary information of the Company ("Confidential Information"). Consultant
agrees to use or disclose Confidential Information only for the purpose of
rendering its Consultant services under this Agreement. Following termination of
this Agreement, Consultant will not disclose Confidential Information until it
becomes publicly known through no act of Consultant. Confidential Information
consists of information designated in writing to the Consultant by the Company
as confidential.
6. Indemnification
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In the event that any claims are made against Consultant arising from
or relating to this Agreement or the services Consultant renders under it, the
Company agrees to indemnify Consultant against all costs, attorney's fees,
fines, judgment, liability or settlement expense incurred thereby.
7. Controversies
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The parties agree that any and all controversies arising from or
relating to this Agreement or Consultant's services or relationship with the
Company shall be litigated and resolved in the 2nd Judicial District Court of
Nassau County, New York, and the parties consent to the jurisdiction and
appropriateness of venue of this court. This Agreement and any and all
controversies between the parties shall in all respects be governed by the laws
of the State of New York. The prevailing party to any controversy shall receive
its costs of suit and reasonable attorney's fees.
8. Notices
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Any and all notices to either party shall be delivered personally or by
United States mail, first class postage prepaid, certified or registered mail,
return receipt requested, addressed as follows:
To the Company:
Paradigm Medical Industries, Inc.
2355 South 1070 West
Salt Lake City, UT 84119
ATTN: President and Chief Executive Officer
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To Consultant:
Cyndel & Co., Inc.
26 Ludlam Avenue
Bayville, NY 11709
ATTN: Patrick M. Kolenik, President
or to such other place as the parties may from time to time designate by notice
to the other party. If delivered personally, such notice shall be effective upon
delivery in the manner specified in this paragraph. If mailed in accordance with
this paragraph, such notice shall be effective upon the date indicated on the
return receipt.
9. Severability
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If any clause, sentence, provision or other portion of this Agreement
is or becomes illegal, null, void or unenforceable for any reason, the remaining
portions shall remain in force and effect.
10. Counterparts
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This Agreement may be executed in a number of counterparts, each of
which executed counterparts shall be deemed an original, and all such
counterparts shall together constitute one and the same Agreement.
11. Entire Agreement
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This Agreement supersedes any and all other agreements, either oral or
in writing, between the parties hereto with respect to the subject matter
hereof, and contains the entire agreement between the parties relating to said
subject matter. This Agreement may not be modified except by an instrument in
writing executed by the parties hereto.
IN WITNESS WHEREOF, the parties signify their understanding and
agreement to the foregoing terms and conditions of this Agreement.
Cyndel & Co., Inc.: By:/s/ Patrick M. Kolenik
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Its: President
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Paradigm Medical Industries, Inc. By: Thomas F. Motter
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Its: CEO
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