EXHIBIT 10.7
CONSULTING AGREEMENT
THIS AGREEMENT is entered into as of August 27, 1999 by and between
Self-Powered Lighting, Inc., a corporation organized and existing under the laws
of the State of New York having its principal place of business at 00000
Xxxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx 00000 (Company) and DCAP Associates,
Inc., a corporation organized and existing under the laws of the State of Nevada
having its principal place of business at 0000 Xxxx Xxxxxxxx Xxxxxxx Xxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000-0000 (Consultant). Company is a subsidiary of
Tri-Lite Inc., a publicly-held corporation that hereby assumes responsibility
for the payment of fees and expenses to Consultant in behalf of Company.
WITNESSETH:
In consideration of the premises and mutual covenants hereinafter
contained, the parties hereto agree as follows:
1. THE SERVICES
The Consultant agrees to provide strategic and tactical direction and
guidance to the Company and assist the Company in marketing the products it
manufactures throughout North America, Europe and other geographical areas
mutually agreed upon by Company and Consultant.
2. WORK FOR HIRE
a. It is the intention of the parties hereto that all rights,
including without limitation copyright and with the sole exception provided
in Paragraph 4 below, in any reports, surveys, marketing, promotional and
collateral materials prepared by the Consultant pursuant to the terms of
this Agreement, or otherwise for Company (hereinafter "the Work") vest in
Company. The parties expressly acknowledge that the Work was specially
ordered or commissioned by Company, and further agree that it shall be
considered a "Work Made for Hire" within the meaning of the copyright laws
of the United States and that Company is entitled, as author and with the
sole exception provided in Paragraph 4 below, to the copyright and all
other rights therein, throughout the world, including, but not limited to,
the right to make such changes therein and such uses thereof, as it may
determine in its sole and absolute discretion.
b. If, for any reason, the Work is not considered a work made for hire
under the copyright law, then, except as provided in Paragraph 4 below, the
Consultant hereby grants and assigns to Company, its successors and
assigns, all of its rights, title, and interest in and to the Work,
including, but not limited to, the copyright therein throughout the world
(and any renewal, extension or reversion copyright now or hereafter
provided), and all other rights therein of any nature whatsoever, whether
now known or hereafter devised, including, but not limited to the right to
make such changes therein, and such uses thereof, as Company may determine.
3. INTELLECTUAL PROPERTY
Notwithstanding the provisions of Paragraph 3 above, Consultant hereby
retains the sole and exclusive right, title and interest in any intangible
marketing or business thought, concept,
idea, method or process arising out of Consultant's engagement with the
Company pursuant to this Agreement.
4. PROPRIETARY INFORMATION
a. For purposes of this Agreement, "proprietary information" shall
mean any information relating to the business of Company or any entity in
which Company has a controlling interest and shall include (but shall not
be limited to) information encompassed in all drawings, designs, programs,
plans, formulas, proposals, marketing and sales plans, financial
information, costs, pricing information, customer information, and all
methods, concepts or ideas in or reasonably related to the business of
Company.
b. Consultant agrees to regard and preserve as confidential, all
proprietary information, whether Consultant has such information in memory
or in writing or other physical form. Consultant shall not, without written
authority from Company to do so, directly or indirectly, use for the
benefit or purposes, nor disclose to others, either during the term of its
engagement hereunder or thereafter, except as required by the conditions of
Consultant's engagement hereunder, any proprietary information.
c. Consultant shall not disclose any reports, recommendations,
conclusions or other results of the Services or the existence or the
subject matter of this contract without the prior written consent of
Company. In Consultant's performance hereunder, Consultant shall comply
with all legal obligations it may now or hereafter have respecting the
information or other property of any other person, firm or corporation.
d. The Consultant expressly agrees that the covenants set forth in
this Paragraph are being given to Company in connection with the engagement
of the Consultant by Company and that such covenants are intended to
protect Company against the competition by the Consultant, within the terms
stated, to the fullest extent deemed reasonable and permitted in law and
equity. In the event that the foregoing limitations upon the conduct of the
Consultant are beyond those permitted by law, such limitations, both as to
time and geographical area, shall
be, and be deemed to be, reduced in scope and effect to the maximum extent
permitted by law.
e. The foregoing obligations of this Paragraph shall not apply to any
part of the information that (i) has been disclosed in publicly available
sources of information, (ii) is, through no fault of the Consultant,
hereafter disclosed in publicly available sources of information, (iii) is
now in the possession of Consultant without any obligation or
confidentiality, or (iv) has been or is hereafter lawfully disclosed to
Consultant by any third party, but only to the extent that the use or
disclosure thereof has been or is rightfully authorized by that third
party.
5. INJUNCTIVE RELIEF
Consultant acknowledges that the injury to Company resulting from any
violation by it of any of the covenants contained in this Agreement will be
of such a character that it cannot be adequately compensated by money
damages, and, accordingly, Company may, in addition to pursuing its other
remedies, obtain an injunction from any court having jurisdiction of the
matter restraining any such violation; and no bond or other security shall
be required in connection with such injunction.
6. FEES AND EXPENSES
a. The parent of Company, Tri-Lite Inc., shall issue Consultant (or
Consulant's employee performing substantially all of the services
hereunder) on the date of this agreement 50,000 shares of restricted
Tri-Lite Inc. common stock and options to acquire 375,000 restricted shares
of Tri-Lite Inc. common stock at any time over a period of five years at a
cost of $2 per share. In addition to the professional services of
Consultant in behalf of Company, the issuance of said options shall include
payment in full for all of Consultant's expenses incurred in the
performance of its services for Company over the duration of this
agreement.
b. Tri-Lite, Inc. agrees to register the 50,000 restricted shares and
the shares underlying the 375,000 options as soon as possible after the
execution of this agreement on Form S-8 of the Securities & Exchange
Commission; and the Consultant agrees and warrants that Xxxxxxx XxXxxxx is
the person providing substantially all of the services hereunder to Company
and that
all of the abovesaid shares and shares underlying the options are to be
issued to Xxxxxxx XxXxxxx.
c. Upon termination of this Agreement, Consultant expressly
understands and agrees that Company has paid all professional fees and
expenses in full and that Company has no further obligation to Consultant.
7. BENEFITS
The Consultant, as an independent contractor, shall not be entitled to
any other benefits other than the fees and expenses provided under
Paragraph 2 of this Agreement.
8. DUTY TO REPORT INCOME
The Consultant acknowledges and agrees that it is an independent
contractor and not an employee of the Company and that it is Consultant's
sole obligation to report as income all compensation received from Company
pursuant to this Agreement. The Consultant further agrees that the Company
shall not be obligated to pay withholding taxes, social security,
unemployment taxes, disability insurance premiums, or similar items, in
connection with any payments made to the Consultant pursuant to the terms
of this Agreement.
9. TERM
This Agreement shall be effective beginning as of August 27, 1999 and
shall continue until July 31, 2000; provided, however, that either Company
or Consultant may terminate this Agreement in whole or in part at any time
after 90 days upon thirty (30) days written notice to the other party. In
the event of termination or upon expiration of this Agreement, Consultant
shall return to Company any and all equipment, documents or materials, and
all copies made thereof, which Consultant received from Company for the
purposes of this Agreement.
10. INDEMNIFICATION
The Consultant shall indemnify and save Company harmless from and
against all claims arising in favor of any person, firm or corporation on
account of personal injury or property damage in any way resulting from the
improper or illegal acts of Consultant, its employees or
agents. The foregoing indemnity shall include all costs incurred by
Company, including reasonable attorneys' fees.
11. NOTICES
All notices shall be in writing and sent via first class mail to the
respective addresses of the parties set forth at the beginning of this
Agreement or to such other address as any party may designate by notice
delivered hereunder to the other party.
12. GENERAL
a. The terms and conditions of Paragraphs 3, 4, 5 and 6 hereof shall
survive the termination of this Agreement or completion of the Services as
the case may be.
b. Neither the Company nor Consultant shall assign this Agreement or
delegate its duties hereunder and shall not subcontract any of the Services
to be performed hereunder without the prior written consent of the other
party hereto.
c. Consultant shall perform the Services as an independent contractor
and shall not be considered an employee of Company or Partner, joint
venturer or otherwise related to Company for any purpose.
d. This Agreement shall be governed by the laws of the State of
California.
e. This Agreement constitutes the entire understanding between
Consultant and Company respecting the Services described herein.
f. The failure of either party to exercise its rights under this
Agreement shall not be deemed to be a waiver of such rights or a waiver of
any subsequent breach.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
Self-Powered Lighting, Inc.
By:
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Its:
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Tri-Lite, Inc.
By:
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Its:
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DCAP Associates, Inc.
By:
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Its:
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