PARADIGM MEDICAL INDUSTRIES, INC.
CONSULTING AGREEMENT
This CONSULTING AGREEMENT ("Agreement") is made and entered
into effective as of this 20th day of June, 2000, by and between PARADIGM
MEDICAL INDUSTRIES, INC. ("Paradigm"), a corporation organized under the laws of
the State of Delaware, and XXXXXX XXXXXX ("Consultant"), a resident of the
United Kingdom.
WHEREAS, pursuant to a Stock Purchase Agreement (the "Purchase
Agreement"), Paradigm is purchasing from Consultant all of the issued and
outstanding shares of Ocular Blood Flow, Ltd., a United Kingdom registered
limited company ("OBF"). This Agreement is being executed as of the Closing Date
of said Purchase Agreement (the "Closing Date");
WHEREAS, the principal business of OBF is the manufacturer and
sale of a product known as a tonometer or blood flow analyzer (the "Blood Flow
Analyzer"); and
WHEREAS, Paradigm desires to obtain the assistance of
Consultant in effecting a smooth transition in the ownership and operation of
OBF's business including the manufacture, operation and sale of Blood Flow
Analyzers, and Consultant desires to give such assistance upon the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, the parties hereto agree as follows:
TERMS OF AGREEMENT
Section 1 - Consultation Services
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1.1 For a period of three (3) years (the "Term") commencing on
the date of this Agreement, Consultant agrees to make himself available from
time to time as requested by Paradigm to advise and consult with Paradigm
concerning any and all aspects of the business operations of OBF including the
manufacture, operation and sale of Blood Flow Analyzers. Consultant agrees to
provide such services for not less than one hundred (100) days during each of
the three (3) years.
Section 2 - Consulting Fee
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2.1 In consideration of Consultant's said consulting services,
Paradigm agrees to pay Consultant a consultant fee (the "Consultant Fee") in the
aggregate sum of U.S. $216,000 for said consulting services less the following
amounts:
(a) The said sum shall be reduced by the amount of
any payment to Consultant of any cash that OBF may have on the Closing Date.
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(b) The said sum shall be reduced by the amount of
any increase greater than $1,000 in the trade debts of OBF accrued between April
12, 2000 and the Closing Date.
2.2 The Consultant Fee shall be paid in 36 equal monthly
installments with the first installment due 30 days after the Closing Date and
with subsequent monthly installments due on the same day of each month
thereafter. Thus, if no reductions are made pursuant to subsections (a) and (b)
of Section 2.1, each monthly installment shall be U.S. $6,000.
Section 3 - Covenant Not to Compete
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3.1 Consultant hereby covenants and agrees that during the
Term of this Agreement and for a period of one (1) year thereafter, he will not,
except as a director, officer, employee or consultant of Paradigm, or any
subsidiary or affiliate of Paradigm, directly or indirectly own, manage,
operate, join, control, or participate in the ownership, management, operation
or control of, or be connected with (as director, officer, employee, agent,
independent contractor of otherwise) in any other manner with any business which
is the same or substantially similar in nature to the business engaged in by
Paradigm or by any of its subsidiaries, including OBF in the State of Utah, and
each of the other states in the United States, and each foreign country, in
which Paradigm or any of said subsidiaries may engage (whether directly or
indirectly through subsidiaries, affiliates, franchisees, licensees,
representatives, agents or otherwise) during the Term of this Agreement and for
a period of one (1) year thereafter.
3.2 Consultant shall not, directly or indirectly, employ,
solicit for employment, or advise or recommend to any other person that they
employ or solicit for employment, any employee of Paradigm (or any subsidiary or
affiliate), during the Term of this Agreement and for a period of one (1) year
thereafter; provided however, that this Section shall not preclude Consultant
from giving an employment reference at the request of any employee of Paradigm
or at the request of a prospective employer of such employee.
3.3 Consultant shall not, during the Term of this Agreement,
engage in any employment, occupation, consulting or other business activity
directly related to the business in which Paradigm is now involved or becomes
involved during the Term of this Agreement, nor will Consultant engage in any
other activities that conflict with his obligations to Paradigm.
3.4 Consultant understands and acknowledges that Paradigm is
entering into this Agreement in reliance upon the unique and essential nature of
the personal services Consultant is to perform as a consultant of Paradigm and
that irreparable injury would befall Paradigm or its subsidiaries should
Consultant serve a competitor of, or compete, with Paradigm or any of its
subsidiaries.
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3.5 Consultant covenants and agrees that Paradigm's remedy at
law for any breach or violation of the provisions of this Section 3 are
inadequate and that, in the event of any such breach or violation, Paradigm
shall be entitled to injunctive relief in addition to any other remedy, at law
or in equity, to which it may be entitled.
3.6 Consultant specifically acknowledges and agrees that the
limitation during the Term of this Agreement and for one (1) year thereafter
upon his activities as specified above, together with the geographical
limitations set forth above, are reasonable limitations as to time and place
upon Consultant's activities and that the restrictions are necessary to
preserve, promote and protect the business, accounts and good-will of Paradigm
and its subsidiaries including OBF and impose no greater restraint than is
reasonably necessary to secure such protection.
3.7 In the event that any provision of this Section 3 shall be
held invalid or unenforceable by a court of competent jurisdiction by reason of
the geographic or business scope or the duration thereof, such invalidity or
unenforceability shall attach only to the scope or duration of such provision
and shall not affect or render invalid or unenforceable any other provision of
this Section 3 and, to the fullest extent permitted by law, this Section 3 shall
be construed as if the geographic or business scope or the duration of such
provision had been more narrowly drafted so as not to be invalid or
unenforceable but rather to provide the broadest protection to Paradigm
permitted by law.
Section 4 - Confidential Information Agreement.
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4.1 Consultant agrees that Consultant will keep confidential
and will not, during or after the Term of this Agreement, disclose, divulge,
furnish or make accessible to any person, firm, corporation or other business
entity, any information, trade secrets, customer information, marketing
information, sales information, cost information, technical data, know-how,
secret processes, discoveries, methods, patentable or unpatentable ideas,
formulae, processing techniques or technical operations relating to the
business, business practices, methods, products, processes, equipment or any
confidential or secret aspect of the business of Paradigm or its subsidiaries
including OBF (collectively, the "Confidential Information") without the prior
written consent of Paradigm. Upon the termination of this Agreement for any
reason, and at any time prior thereto upon request by Paradigm, Consultant shall
return to Paradigm all written records of any Confidential Information, together
with any and all copies of such records, in Consultant's possession. Any
Confidential Information which Consultant may conceive of or make during the
Term of this Agreement shall be and remain the property of Paradigm. Consultant
agrees promptly to communicate and disclose all such Confidential Information to
Paradigm and to execute and deliver to Paradigm any instruments deemed necessary
by Paradigm to effect disclosure and assignment thereof to it.
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Section 5 - Warranties and Representations
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5.1 Each party represents to the other party and warrants that
such party has all of the requisite power and authority to enter into this
Agreement and to perform each and every term, provision, and obligation of this
Agreement and that neither the execution nor delivery of this Agreement shall
conflict with or result in a breach of the terms, provisions, or obligations of,
or constitute a default under, any other agreement or instrument under which
such party is obligated.
Section 6 - Assignment
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6.1 This Agreement is personal to the Consultant and the
Consultant shall not have the right to assign or otherwise transfer in whole or
in part his duties under this Agreement.
6.2 Paradigm shall have the right to assign or transfer in
whole or in part its rights and obligations under this Agreement, provided that
no assignment or transfer by Paradigm shall be deemed effective unless and until
such assignee or transferee has agreed in writing to be bound by the terms and
provisions of this Agreement; in such event, the term "Paradigm" as used herein
shall include such assignee or transferee.
Section 7 -Taxes
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7.1 Consultant is an independent contractor and is not an
employee of Paradigm. Consultant shall be solely responsible for the payment and
discharge of any taxes, withholdings, or duties imposed by any government or
governmental agency relating to any Consulting Fees paid to him under this
Agreement. Paradigm may, at its option, deduct from the Consulting Fees set
forth in section 3 of this Agreement, an amount equal to such taxes,
withholdings, or duties.
Section 8 - Notices
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8.1 All notices, demands, and other communications under this
Agreement shall be in writing and shall be transmitted by United States or
United Kingdom certified or registered mail, postage prepaid, or by reputable
private express courier, or by telex or telegram or by facsimile transmission to
the parties at the following locations or facsimile numbers:
(a) In the case of Paradigm:
PARADIGM MEDICAL INDUSTRIES, INC.
0000 Xxxxx 0000 Xxxx
Xxxx Xxxx Xxxx, XX 00000
United States of America
Facsimile Number: (000) 000-0000
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(b) In the case of Consultant:
XXXXXX XXXXXX
Ocular Blood Flow, Ltd.
Xxxx 0 Xxxxxxxxxx Xxxxxxxx
Xxxx Beuttell Way
Malmesbury Wiltshire Sn16 9JU
England
Facsimile Number: 011 441 666 823763
The parties hereto may give written notice of change of address and, after such
notice has been received, any notice or request shall thereafter be given to
such party at the changed address.
Section 9 - Applicable Law
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9.1 The validity and interpretation of this Agreement shall be
governed by and enforced and interpreted under and in accordance with the laws
of Delaware as such law shall from time to time be in effect.
Section 10 - Attorneys Fees
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10.1 In the event there is a default under this Agreement and
it becomes reasonably necessary for any party to employ the services of an
attorney, either to enforce or terminate this Agreement, with or without
litigation, the losing party or parties to the controversy arising out of the
default shall pay to the successful party or parties reasonable attorneys fee
and, in addition, such costs and expenses as are incurred in enforcing or in
terminating this Agreement.
Section 11 - Termination
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11.1 Except for Consultant's duties under Sections 3 and 4,
this Agreement shall terminate when Consulting Fees are no longer payable under
Section 2.
Section 12 - General Provisions
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12.1 The parties hereto have read this Agreement and agree to
be bound by all its terms. The parties further agree that this Agreement shall
constitute the complete and exclusive statement of the Agreement between them
and supercedes all proposals, oral or written, and all other communications
between them.
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12.2 No agreement changing, modifying, amending, extending,
superceding, or discharging this Agreement or any provisions hereof shall be
valid unless it is in writing and is signed by a duly authorized representative
of the party or parties to this Agreement.
12.3 The provisions of this Agreement are severable, and in
the event that any provision of this Agreement shall be held to be invalid,
illegal, or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
12.4 The failure of any of the parties hereto to enforce any
of the provisions of this Agreement or any rights with respect thereto or the
failure to exercise any election provided for herein, shall in no way be
considered a waiver of such provisions, rights or elections or in any way affect
the validity of this Agreement. No term or provision hereof shall be deemed
waived and no breach excused, unless such waiver or consent shall be in writing
and signed by the party claimed to have waived or consented. The failure by any
of the parties hereto to enforce any of said provisions, rights, or elections
shall not preclude or prejudice such party from either enforcing or exercising
the same or any other provisions, rights, or elections which it may have under
this agreement. Any consent by any party to, or waiver of, a breach of this
Agreement by the other party (whether expressed or implied) shall not constitute
a consent to, a waiver of, or excuse of different or substitute breach. All
remedies herein conferred upon any party shall be cumulative and no one shall be
exclusive of any other remedy conferred herein by law or equity.
12.5 Paradigm and Consultant, except as provided herein, each
shall bear all costs and expenses incurred in the performance of their
respective duties under this Agreement.
12.6 This Agreement shall be binding not only upon the parties
hereto, but also upon, without limitation thereto, their successors, heirs,
devises, divisions, subsidiaries, officers, directors, employees, agents,
representatives, and any and all persons or entities in privity with them or
having notice of this Agreement.
12.7 There shall be no liability on either party on account of
any loss, damage, or delay occasioned or caused by strikes, riots, fires,
insurrection, or the elements, embargoes, failure of carriers, acts of God or of
the public enemy, compliance with any law, regulation, or other governmental
order, or any other cause beyond the control of either party, whether or not
similar to the foregoing.
12.8 Headings used in the Agreement are for reference purposes
only and shall not be deemed a part of this Agreement.
12.9 This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, all of which
constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first mentioned above.
PARADIGM:
PARADIGM MEDICAL INDUSTRIES, INC.
By /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President and
Chief Executive Officer
CONSULTANT:
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
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