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Xxx Xxxxxxxx Consulting Agreement for services starting FY 2003.
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made as of April 3, 2003 ("Effective
Date") between Paradigm Medical Industries, Inc. ("the Company"), and The
Kinexsys Corporation ("the Consultant"),
WHEREAS, the Company wishes to engage Consultant as an independent contractor
for the performance of certain services, which are outlined in Exhibit A hereto
(the "Services"), and to compensate Consultant according to the terms set forth
below; and
WHEREAS, Consultant wishes to accept such engagement and to act as an
independent contractor to the Company for and with respect to the performance of
the Services.
In consideration of the foregoing premises and the promises and covenants and
representations made herein, and intending to be legally bound, the parties
hereby agree as follows:
1. Purpose. The Company desires to obtain the services of Consultant, as such
are described in the Description of Work. The Description of Work is attached
hereto as Exhibit A. Consultant will invoice the Company according to the terms
hereof, and the Company will make payment for the Services as provided. The
agreement will expire on the one-year anniversary of signing and will be
renewable at the option of both parties.
2. Compensation. In consideration of the services to be rendered by Consultant
under this Agreement, the Company shall pay to Consultant the compensation
specified in Exhibit A attached hereto and made a part hereof.
3. Scope of Work; Acknowledgment. Consultant will perform the Services on a best
efforts basis under the direction of appropriate Company personnel. The Company
will determine the general project assignment and any documentation standards to
be followed.
4. Ownership of Tangible Property Embodying Proprietary Rights. All tangible
materials embodying the Company information and intellectual property disclosed
to Consultant hereunder, shall be the sole and exclusive property of the
Company. All Tangible Property will be returned or delivered to the Company upon
the termination or expiration of the Services. Upon request by the Company, and
in any event upon termination of this Agreement for any reason, Consultant will
promptly deliver to the Company all Tangible Property belonging to the Company
then in Consultant's custody or possession or under Consultant's control.
1.
5. Additional Obligations
5.1 Limits of Liability. In no event shall either party be liable
for any indirect, consequential or special damages arising
hereunder or related to their performances of this Agreement.
5.2 Arbitration. Any disputes that may arise in connection with
the provision of the Services or the interpretation or
enforcement of any term or provision of this Agreement shall
be submitted to binding arbitration under the laws of the
state of Utah, under the rules and regulations of the American
Arbitration Association in accordance with its Commercial
Arbitration Rules then in effect. The arbitrator shall apply
Utah substantive law and shall have the power to grant all
legal and equitable remedies and award compensatory (but not
punitive) damages provided by Utah law. The parties shall be
entitled to conduct discovery in accordance with Utah civil
procedure rules. The arbitrator shall prepare in writing and
provide to the parties a reasoned award including factual
findings and conclusions of law on which the decision is
based. The arbitrator shall not have the power to commit
errors of law or legal reasoning, and the award may be vacated
or corrected pursuant to Utah law for any such error. Except
as provided in the preceding sentence, the award of the
arbitrator shall be final and may be submitted to any court
having jurisdiction for the purpose of confirmation and
enforcement. As additional damages, the arbitrator shall have
the discretion to award costs and attorneys' fees to the
prevailing party.
5.3 The provisions of Section 6.2 do not limit any party's right
to institute an action in a court of law before, during or
after an arbitration proceeding, solely in order to obtain any
interim remedy such as an attachment or injunctive relief. For
such purposes, the parties agree that any federal or state
court of general jurisdiction located in Salt Lake City, Utah,
shall have jurisdiction over them and the parties consent to
the exercise of such jurisdiction and waive any right of
objection they may otherwise have with respect thereto. If the
arbitrator does make such an award, then costs of arbitration
shall be divided equally between the parties, and each party
shall bear its own legal fees and expenses.
5.4 The parties direct and require that the Federal Arbitration
Act (Title 9, U.S. Code) shall be broadly and liberally
construed to embrace this Agreement and all disputes
hereunder. Subject to the foregoing, this Agreement will be
governed by, and construed and interpreted according to, the
substantive laws of the State of Utah, and this contract is
deemed to have been executed and entered into within the State
of Utah.
6. General
6.1 Entire Agreement. This Agreement constitutes the entire and
final agreement between the parties regarding the subject
matter hereof; is intended as a complete and exclusive
statement of the terms and conditions of that agreement; and
supersedes any prior or contemporaneous agreements, whether
oral or written, between the parties regarding such subject
matter, any such prior or contemporaneous agreements being
merged herein. In the event of any inconsistency between the
terms and provisions of this Agreement and the exhibits
hereto, the terms and provisions of this Agreement shall
control.
6.2 Severability. In the event any provision, term or clause in
this Agreement is judged to be inoperative, unenforceable,
invalid or null and void, it shall only affect that particular
provision, term, or clause without affecting the remaining
provisions of this Agreement.
6.3 Modifications. No modifications to this Agreement shall be
effective unless in writing and signed by both parties.
6.4 Successors. This Agreement shall be binding on and inure to
the benefit of the respective successors, assigns, and
personal representatives of this parties. This Agreement is
not intended to create any rights or remedies in favor of any
person who is not a signatory to this Agreement, or in any way
create any third party beneficiary rights or remedies.
6.5 Waiver. No waiver of any breach of any of the provisions of
this Agreement shall be deemed a waiver of any preceding or
succeeding breach of the same or any other provisions hereof.
No such waiver shall be effective unless in writing and then
only to the extent expressly set forth in writing. All
remedies available to either party for breach of this
Agreement are cumulative and may be exercised concurrently or
separately, and the exercise of any one remedy shall not be
deemed an election of such remedy to the exclusion of other
remedies.
6.6 Further Assurances. The parties agree to execute and deliver
to each other, upon request any and all additional documents,
instruments and advice necessary to be filed, recorded or
delivered in order to carry out the purposes of this
Agreement.
8.1 Exclusive Right. The Company may not contract with companies
or individuals other than consultant for services similar to
the Services to be rendered hereunder without attaining
written agreement from the Consultant.
8.2 Counterparts. This Agreement may be executed by fax and in one
or more counterparts, each of which shall constitute an
original instrument and all of which together shall constitute
the same instrument.
8.3 Notices. Any notice required or permitted under this Agreement
shall be in writing and shall be deemed duly given for all
purposes (i) on the date of deliver, if delivered personally
on the party or by confirmed facsimile transmission, or (ii)
on the next day after delivery to a reputable overnight
courier, or (iii) on the third business day after mailing, if
sent by United States registered mail, return receipt
requested, in each case postage prepaid and addressed to the
addressee at the address stated below or at the most recent
address, specified by written notice, given to the sender by
addressee under this provision.
If to the Company: Paradigm Medical Industries, Inc.
0000 Xxxxx 0000 Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxxxx Xxxxx
801-977-8970
If to the Consultant: 000 Xxxx 0000 Xxxxx
Xxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
000-000-0000
8.4 Attorneys' Fees. In any action between the parties to enforce
any of the terms of this Agreement, the prevailing party shall
be entitled to recover expenses, including reasonable
attorneys' fees.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and do
hereby warrant and represent that their respective signatory whose signature
appears below has been and is on the date of this Agreement duly authorized by
all necessary and appropriate action to execute this Agreement. This Agreement
is and shall become effective as of the Effective Date stated.
Paradigm Medical Industries, Inc. ("the Company")
By: /s/ Xxxxxxx X. Xxxxx
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Xx. Xxxxxxx X. Xxxxx
Chief Executive Officer
Kinexsys Corp. ("the Consultant")
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Senior Partner
EXHIBIT A TO CONSULTANT AGREEMENT
CAPITAL MARKETS SCENARIO PLANNING &
CORPORATE POSITIONING/COMMUNICATIONS PLAN
Deliverables for each category are as follows:
1) Capital Markets Scenario Planning:
Deliverables:
o Kinexsys will provide detailed analysis of Paradigm's current
capital market structure in relation to current investors,
market trends, and projected equity movements. This assessment
creates two scenarios (long & short) to anticipate actions and
counteractions in the marketplace.
o Key financial metrics specifically mapped to Paradigm,
computed using Kinexsys proprietary formulas are to be
provided to expose real-time trends needed to set executive
policy.
o Recommendations on capital management strategies including
private placement offerings, secondary public offerings, debt
financing, cash management, etc.
2) Corporate Positioning and Communications Plan
Deliverables:
o Kinexsys will create a point/counterpoint to each of the two
scenarios identified during Capital Markets Scenario Planning.
Key objectives will be established for Paradigm in the area of
corporate finance and business operations.
o Corporate Positioning Matrix for Markets, Analysts, Customers,
Partners
o A communications plan will be established as outlined above.
Specific objectives will be mapped to market drivers to
maximize impact and avoid communication pitfalls. Kinexsys
will employ a series of time-sensitivity analyses to optimize
Paradigm's market awareness and overall positioning.
SCOPE OF SERVICES
We will work with your team in a 4-part process
1. Discovery
2. Mapping
3. Iteration & adaptation 4. Proposal and action plan
PARADIGM MEDICAL'S RESPONSIBILITIES
This project requires involvement by Xx. Xxxxxxx Xxxxx and the management team
of Paradigm Medical Industries. Ultimate success will be highly dependent upon
the collective ability of the Consultant and Paradigm management to implement
our systematic approach to pro-active planning and communications. To help
achieve a smooth and successful implementation, it will be Paradigm's
responsibility to perform the following:
1. Under non-disclosure, provide access to key financial statements and
investment information. 2. Provide business operating goals and
metrics. 3. Communicate product strategies, roadmaps, and technological
advantages. 4. Establish a tactical process to include Kinexsys reviews
of planning and unplanned market
communications.
COMPENSATION FOR SERVICES PROVIDED BY CONSULTANT
Kinexsys is pleased to work with Paradigm Medical Industries, Inc. and aspires
to a long-term mutually rewarding relationship. In the one-year phase of this
agreement, Kinexsys will be compensated for the deliverables that it provides in
the form of warrants as outlined in the proposal summary below.
For Capital Markets Scenario Planning, Capital Management Strategy Review and
the Corporate Positioning Plan the Consultant shall receive warrants to purchase
up to 200,000 shares at a purchase price of U.S. $.16 (sixteen cents).
The Consultant is permitted to transfer the rights under this Agreement, but may
not transfer the obligations under the agreement to other parties without the
consent of the company.
EXPENSES
a) The Consultant will receive reimbursement of all expenses for
costs pre-approved by the Company in connection with the above
defined Services to be provided by the Consultant including
travel related expenses or mailing, shipping or copying costs.
The Consultant shall invoice Paradigm Medical Industries for
expenses in a timely fashion. Invoices shall be paid within
fifteen (15) days, and late invoices shall bear interest at 1%
per month.
