[CONSULTING AGREEMENT/INDEPENDENT CONTRACTOR AGREEMENT] THIS AGREEMENT (this Agreement ), made and entered into as of the day of, 2017, by and between, a New York corporation with an address of, Buffalo, New York (the Buyer ), and, an individual with an address as (the Consultant ). WITNESSETH: WHEREAS, by a agreement dated as of today s date (the Purchase Agreement ), the Buyer has agreed to purchase certain of the assets and business of, a New York corporation (the Corporation ); WHEREAS, Consultant is the sole shareholder of the Corporation and was actively engaged in the business of the Corporation; WHEREAS, the Buyer wishes to assure itself of the services of the Consultant for the period provided in this Agreement, and the Consultant is willing to serve the Buyer for such period, all upon the terms and conditions set forth below; and WHEREAS, the execution of this Agreement is a condition precedent to the obligations of the parties under the Trade Secret Agreement. NOW, THEREFORE, in consideration of the premises and all the terms and conditions contained herein and intending to be legally bound hereby, the parties hereto agree as follows: 1. Engagement and Duties. The parties hereby agree that, for a period of thirty-six (36) months after the date hereof (the Term ), the Buyer shall engage Consultant to render services to customers of the Buyer and in connection therewith to perform sales duties on behalf of Buyer. During the period of his engagement hereunder, Consultant shall devote his attention, skill, and efforts to the faithful performance of his duties hereunder and shall use his best endeavors diligently to promote the business and welfare of Buyer. The services described in this Section 1(a) shall be provided at such times and places as shall be mutually agreed-upon by Buyer and Consultant. Consultant hereby accepts such engagement and agrees faithfully to perform to the best of his ability the duties described above. Consultant shall be located at Buyer s location, but at all times shall remain an independent contractor. Apart from the primary location of Consultant s services, Buyer shall have no control over the direction or manner of Consultant s work in servicing Buyer s customer accounts. It is understood that Consultant is an independent contractor, and is not to be considered as the agent, representative, or employee of Buyer for any purposes whatsoever, and no employee-employer relationship is intended or created by this Agreement. Neither party has authority to bind the other party or assume any obligations for or on behalf of the other party or to 1
make any warranties or representations for or on behalf of the other party. Consultant further agrees and acknowledges that Consultant will not be entitled to receive any benefits that employees of Buyer are entitled to receive, including, but not limited to: (a) inclusion in Buyer sponsored retirement and incentive bonus plans; (b) sick pay; (c) paid vacations; (d) participation in any plan offering life, accident or health insurance; or (e) disability insurance, workers' compensation, and unemployment insurance, if offered by Buyer. 2. Compensation. In consideration of the Consultant s agreement contained herein, and as compensation to the Consultant for the performance of the services required hereunder, during the Term, Buyer shall pay the Consultant the following: (a) Commissions. In consideration of sales services provided by Consultant, Buyer shall pay Consultant a commission (the Commissions ) as follows: (i) fifteen percent (15%) of Buyer s gross sales arising from all sales to a new customer brought in by Consultant not set forth on Schedule A and not already a customer of Buyer (each a Buyer Account ) as of the Effective Date for the period of time between the Effective Date and the third (3 rd ) anniversary thereof. A list of Buyer Accounts is set forth on Schedule B attached hereto. (ii) if Consultant continues to provide services to Buyer pursuant to this Agreement beyond the third (3 rd ) anniversary of the Effective Date (as agreed to between Buyer and Consultant), fifteen percent (15%) of all gross sales arising from Buyer s business transactions with any customer set forth on Schedule A or any customer brought in by Consultant that is not then a customer of Buyer s and Schedule B shall be updated by Buyer at the time of such extension. (iii) Payments of Commissions due to Consultant shall be made on a monthly basis by the 15 th day of the month following the month in which the receipt of monies related to each such sale is received by Buyer. (iv) Consultant must receive Buyer s approval in writing (via either or ) for any pricing structure offered by Consultant to a customer prior to Consultant offering such pricing structure, and Buyer shall not be bound to honor any pricing structure as not so approved. (v) For purposes hereof, new customer shall mean any customer not listed on Schedule B attached hereto or on Schedule A to the Purchase Agreement. 3. Office Space. During the Term, the Buyer shall, at its sole cost and expense, make available office space to the Consultant for use in performing the services hereunder while at Buyer s office. 4. Non-Solicitation. 2
During the Term and for a period of twenty-four (24) months thereafter, Consultant shall not, in any way, directly or indirectly, for his own account or for the account of the Company or any third party (as proprietor, owner, shareholder, partner, member, manager, officer, director, employee, principal, consultant, agent or otherwise): (a) employ or solicit, receive or attempt to receive the performance of any services by any employee, agent or independent contractor of Buyer; (b) directly or indirectly solicit, encourage or induce any employee of the Company to become an employee of or otherwise provide services to any other Person to terminate his or her employment with the Company; or or customers. (c) disrupt or interfere with any of Buyer s relationships with any of its vendors 5. Equitable Relief. Consultant acknowledges that monetary relief alone may not be a sufficient remedy for Consultant breach of any of the terms of this Agreement and that Buyer shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief, including specific performance, as may be deemed proper by a court of competent jurisdiction. 6. General Provisions. (a) Effect of Prior Agreements. This Agreement contains the entire understanding between the parties hereto and supersedes any prior employment agreement, arrangement or undertaking between the Consultant and the Buyer. (b) Non-Assignability. Neither this Agreement nor any right or interest hereunder shall be assignable by either party, their or its beneficiaries or legal representatives without the other party s prior written consent. (c) Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the Consultant and Buyer and their respective permitted successors and assigns. Consultant may not assign this Agreement and any assignment in violation hereof shall be null and void. (d) Amendment of Agreement. This Agreement may not be modified or amended except by instrument in writing signed by the parties hereto. (e) Headings. The headings of sections herein are included solely for convenience of reference and shall not control the meaning or interpretation of any of the provisions of this Agreement. (f) Notices. Any and all notices required to be sent pursuant to the terms of this Agreement shall be sent registered or certified mail or personally delivered to the parties hereto 3
at the addresses first written above or such other addresses as they may designate in writing. (g) Governing Law. This Agreement has been executed in the State of New York, and its validity, interpretation, performance, and enforcement shall be governed by the laws of the State of New York. (h) Enforceability. The invalidity or unenforceability of any particular provision of this Agreement shall not effect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid and unenforceable provisions were omitted. (i) Termination. Notwithstanding anything contained herein to the contrary, Consultant may, at any time prior to the expiration of the Term, for any reason or no reason, terminate this Agreement upon not less than thirty (30) days prior written notice to Buyer. During the Term, either party may terminate this Agreement upon a failure by the other party to substantially perform his or its duties and obligations imposed upon him or it under this Agreement and such breaching party shall fail to cure or undertake in good faith to cure such failure within fifteen (15) days after written notice by the non-defaulting party to the defaulting party. [Signature page follows] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. 4
By: Its: Consultant: [Signature Page Consulting Agreement/Independent Contractor Agreement] SCHEDULE A CURRENT CUSTOMERS 5
See attached. SCHEDULE B BUYER CUSTOMERS 6
See attached. 7