EXHIBIT 10.7
CONSULTING AGREEMENT
This Agreement entered into as of May 28th, 1999, by and between SMA
REAL TIME, INC. ("SMA"), and XXXXXXX XXXXXXXXX (hereinafter "Bissiccio"). In
consideration of the mutual promises and covenants contained below, the parties
agree as follows:
1. Services to be Rendered. Bissiccio shall perform the following
marketing and sales services to the best of his abilities and to SMA's
satisfaction, including, without limitation:
(a) Developing and implementing a marketing program and plan for
sales of products and services relating to digital audio.
(b) Making introductions to, or otherwise initiating sales relationships
in the area of digital audio.
2. Term. The term of this Agreement shall be from June 1, 1999 through
November 30,1999.
3. Independent Contractor Status. Bissiccio expressly acknowledges that
he will be acting as an independent contractor and not as an employee, for all
purposes, including payment of Social Security withholding tax and all other
federal, state and local taxes. Bissiccio shall be free to set its own hours
and appointments. SMA acknowledges that Bissiccio carries on and agrees that
Bissiccio shall be entitled to continue to carry on other business activities,
provided that the same to not compete with or interfere with the performance of
his obligations hereunder.
4. Performance of Bissiccio
(a) All work performed hereunder by Bissiccio shall be of the highest
professional standards and performed to SMA's reasonable satisfaction.
5. Commissions and other Payments. Bissiccio's compensation under this
Agreement is:
(a) $25,000 paid upon the execution of this Agreement;
(b) $17,500 paid on each of June 30, 1999, July 31, 1999, August 31, 1999,
September 30, 1999, October 31, 1999 and November 30, 1999, for a total of
$105,000.
(c) ordinary and necessary expenses incurred by Bissiccio in the
performance of his assignment hereunder, subject to prior approval by SMA.
(d) Commissions on sales made by SMA which result directly from
Bissiccio's introductions or other interventions as follows:
i Sales resulting from new clients introduced by Bissiccio during
the term of this Agreement and for a five (5) year period thereafter;
ii Sales resulting from new business received by SMA during the
term of this Agreement and any extension thereof;
iii Sales resulting from the introduction or intervention by certain
new employees hired at the request of Bissiccio, but limited to sales made
during the period that such employees remain employed by SMA. A list of such
employees signed by SMA and by Bissiccio shall be attached as a Schedule to
this Agreement. Upon the addition or removal of such employees the schedule
shall be revised and resigned.
iv Commissions shall be paid to Bissiccio at the rate of three (3%)
percent of the revenue collected from customers, calculated on the basis of
total net paid invoices. For purposes of this Agreement, a "net paid invoice"
shall equal the gross amount of a paid invoice, less discounts and allowances.
Commissions shall be paid to Bissiccio by the tenth day of the month
immediately following the month in which payment on invoices is received.
Payment of commissions to Bissiccio shall be accompanied by a statement of
commissions.
SMA shall have the absolute right, in its discretion, to refuse to accept any
orders procured by Bissiccio, or to make any allowances or adjustments to
orders. SMA shall notify Bissiccio in writing of such refusals, allowances or
adjustments.
6. Trade Secrets
(a) With respect to SMA's special business techniques, market
analysis, forms, software programs, customer lists, and all other information
regarding SMA's products and services, Bissiccio acknowledges that all of such
information:
i belongs to SMA;
ii constitutes specialized and highly confidential information not
generally known in the industry; and
ii constitutes trade secrets of SMA.
Accordingly, Bissiccio recognizes and acknowledges that it is essential to SMA
to protect the confidentiality of this trade information.
(b) Bissiccio agrees to act as a trustee of SMA's confidential
information and will hold such information in trust and confidence for SMA's
sole and exclusive use and benefit.
(c) During the term hereof, and for thirty-six (36) months
thereafter, Bissiccio shall not disclose such information to any person, firm,
association, or other entity for any reason or purpose whatsoever, unless such
information has already become common knowledge or unless Bissiccio is required
to disclose the information by judicial process.
7. Warranty Against Prior Existing Restrictions. Bissiccio
represents and warrants to SMA that he is not a party to any agreement
containing a non-competition clause or other restriction with respect to the
services which he is required to perform hereunder, or the use or disclosure of
any information, directly or indirectly, related to SMA's business or to the
services he is required to render for SMA.
8. Prohibition Against Assignment. Bissiccio agrees, for himself and
on behalf of his successors, heirs, executors, administrators, and any person
or persons claiming under him, that this Agreement and the rights, interests,
and benefits hereunder cannot be assigned, transferred, pledged, or
hypothecated in any way and shall not be subject to execution, attachment, or
similar process. Any attempt to do so, contrary to these terms, shall be null
and void and shall relieve SMA of any and all obligations or liability
hereunder.
9. Agreement not to Compete. SMA has retained Bissiccio only for the
purposes set forth in this Agreement and his relationship to SMA is that of an
independent contractor. During the term hereof, Bissiccio shall not, directly
or indirectly, enter into, or in any manner take part in, any business,
profession, or other endeavor which competes with SMA. Bissiccio shall not so
compete either as an employee, agent, independent, contractor, owner, or
otherwise.
10. Restrictive Covenant
(a) For a period of one (1) year after the expiration or
termination of this Agreement for any reason, with or without cause, Bissiccio
will not, directly or indirectly, contact any then-existing client of SMA for
the purpose of selling services or products in the area of digital audio on
behalf of any other person, firm, company, or corporation.
(b) The parties acknowledge that they have attempted to limit
Bissiccio's right to compete only to the extent to protect SMA from unfair
competition. However, the parties hereby agree that, if the scope or
enforceability of the restrictive covenant is in any way disputed at any time,
a court of other trier of fact may modify and enforce the covenant to the
extent that it believes the covenant to be reasonable under the circumstances
then existing.
(c) Bissiccio further acknowledges that: (1) in the event this
Agreement with SMA terminates for any reason, he will be able to earn a
livelihood without violating the foregoing restrictions; and that his ability
to earn a livelihood without violating such restrictions is a material
condition to his retention by SMA.
11. Notice. All notices shall be given in writing and sent by
registered or certified mail, return receipt requested, and shall be addressed
to:
In the case of SMA--
Xxxxxxx X. Xxxxxxxxx, President
SMA REAL TIME, INC.
100 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
And in the case of Bissiccio--
XXXXXXX XXXXXXXXX
000 0xx Xxxxxx, Xxxxx 0
Xxxxx Xxxxxx, XX 00000
12. Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors, assigns,
and legal representatives.
13. Captions. Captions of the sections of this Agreement are for
convenience and reference only, and the words contained shall not be held to
modify, amplify, or aid in the interpretation of the provisions of this
Agreement.
14. Counterparts and/or Facsimile Signature. This Agreement may be
executed in any number of counterparts, including counterparts transmitted by
telecopier or FAX, any one of which shall constitute an original of this
Agreement. When counterparts of facsimile copies have been executed by all
parties, they shall have the same effect as if the signatures to each
counterpart or copy were upon the same document and copies of such documents
shall be deemed valid as originals. The parties agree that all such signatures
may be transferred to a single document upon the request of any party.
15. Situs. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
conflict of laws.
16. Arbitration. Except for obtaining injunctive relief by either
party against actual or threatened conduct that would cause irreparable harm to
that party, and except for controversies, disputes or claims under this
Agreement related to the enforceability of restrictive covenants relating to
non-competition, any dispute arising between the parties shall be submitted for
arbitration to be administered by the New York City office of the American
Arbitration Association on demand of either party. All such claims shall be
heard by one arbitrator. Such arbitration proceedings shall be conducted in New
York City, and except as otherwise provided in this Agreement, shall be
conducted in accordance with the then-current Commercial Arbitration Rules of
the American Arbitration Association. The arbitrator shall have the right to
award or include in its award any relief which he or she deems proper in the
circumstances, including without limitation, money damages (with interest on
unpaid amounts from date due), specific performance, injunctive relief,
reasonable attorneys' fees and costs. The award and decision of the arbitrator
shall be conclusive and binding upon all parties hereto and judgment upon the
award may be entered in any court or competent jurisdiction, and each waives
any right to contest the validity or enforceability of such award. The
arbitrator shall apply the provisions of any applicable limitation on the
period of time in which claims must be brought. The parties
further agree that, in connection with any such arbitration proceeding, each
shall submit or file any claim that would constitute a compulsory counterclaim
(as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same
proceeding as the claim to which it relates. Any such claim which is not
submitted or filed in such proceeding shall be barred. This provision shall
continue in full force and effect subsequent to and notwithstanding expiration
or termination of this Agreement. The parties agree that arbitration shall be
conducted on an individual, not a class-wide basis and that none of the parties
hereto shall be entitled to consolidation or arbitration proceedings involving
such parties with those of any third party, nor shall the arbitrator or any
court be empowered to order such consolidation.
17. Non-Waiver. No delay or failure by a party to exercise any right
under this Agreement, and no partial or single exercise of that right, shall
constitute a waiver of that or any other right, unless otherwise expressly
provided herein.
18. Severablity. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by
or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
19. Modifications. This Agreement may not be and shall not be deemed
or construed to have been modified, amended, rescinded, cancelled, or waived in
whole or in part, except by a written instrument signed by the parties hereto.
20. Entire Agreement. This Agreement constitutes and expresses the
entire agreement and understanding between the parties hereto in reference to
all the matters referred to herein, and any previous discussions, promises,
representations and understanding relative thereto are merged into the terms of
this Agreement and shall have no further force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement on this
28th day of May, 1999.
SMA REAL TIME, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
SMA President
/s/ Xxxxxxx Xxxxxxxxx
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XXXXXXX XXXXXXXXX
