EXHIBIT 10.7
CONSULTING AGREEMENT
This Consulting Agreement is made this 16th day of December 2002, by and
between TDI Holding Corporation, a Colorado corporation, (hereinafter referred
to as "TDI" or "Company") and Xxxxx X. Xxxxxxx, 0000 X. Xxxxxx Xxxxxx, Xxxxx
000, Xxxxxx, XX 00000, (hereinafter referred to as "Consultant").
WITNESSETH:
WHEREAS, pursuant to the September 6, 2002, purchase and sale agreement
with Xxxxxxxx Acquisition Corp. d/b/a "Allied Xxxxxx," a Minnesota
corporation, (hereinafter referred to as "Allied Xxxxxx") TDI is the owner of
a contingent receivable due from Allied Xxxxxx ("the Receivable"), and
WHEREAS, Xxxxxxx is an outside member of the TDI board of directors and
has served as a consultant to the Company by assisting TDI in negotiating and
completing the purchase and sale agreement with Allied Xxxxxx, and
WHEREAS, TDI is desirous of entering into this Agreement with Xxxxxxx for
the purpose of providing payment for services rendered by Consultant upon the
terms and conditions herein set forth.
AGREEMENTS:
For the consideration set forth herein, the parties hereto agree as follows:
I. Services. The parties acknowledge the value of services provided by
Consultant in identifying and negotiating the sale of TDI assets to
Allied Xxxxxx as consummated in the September 6, 2002 purchase and sale
agreement referenced above.
II. Compensation. For services rendered, the Company agrees to pay
Consultant a contingent consulting fee based on the total realized value
of the Receivable, payable in the form of cash "when earned as earned"
and within five (5) business days of receipt of any payments received by
TDI from Allied Xxxxxx. The consulting fee shall be calculated using
the standard Xxxxxx formula which prescribes a fee equal to 5 percent of
the first million dollars in purchase price received, 4 percent on the
second, 3 percent on the third, 2 percent on the fourth, and 1 percent
on the purchase price received in excess of $4 million. By way of
example, should the total realized value of the Receivable equal $3.5
million received by TDI, the consulting fee payable to Consultant would
equal $130,000. Similarly, should the total realized value of the
Receivable equal $1.0 million, the fee would equal $50,000.
III. Term. This agreement shall remain in effect until the Receivable due
TDI from Allied Xxxxxx has been paid in full, and the consulting fee
above described has been paid to Consultant in full, or until the sale
and purchase agreement dated September 6, 2002 with Allied Xxxxxx
expires, whichever comes first.
Representations and Warranties of TDI. The Company represents and warrants
the following:
A. TDI has the power and authority to execute, deliver and carry out
this Agreement which has been approved by the Company's board of
directors; the making of this Agreement is not in violation of any
contractual or regulatory obligation binding upon TDI; this
Agreement, so executed, will constitute a valid and binding
obligation of TDI.
B. The Company hereby waives any potential conflict of interest
arising from this Agreement and compensation to be paid
thereunder, and in consideration of the Consultant's position as
an outside member of the Company's board of directors.
C. The Company agrees to properly disclose the transaction in its
regulatory filings, where such disclosure may be required and
applicable.
D. The Company agrees that during the term of this Agreement, and
while payment of the consulting fees remains owing and
outstanding, Consultant shall continue to retain his position on
the TDI board of directors, unless otherwise mutually agreed upon
by the parties.
E. The Company hereby waives demand and presentment for payment,
notice of dishonor, protest and notice of protest and diligence in
collection and agrees to any extension of time for payment.
IV. Representations and Warranties of Consultant. The Consultant
represents and warrants he has the power and authority to execute,
deliver and carry out this Agreement and the making of this Agreement is
not in violation of any contractual or regulatory obligation binding
upon Consultant.
V. Assignability. The unpaid consulting fees authorized by this Agreement
shall be assignable by Consultant to any third party at his option
during the term of this Agreement, whereupon all interests, rights and
compensation due from the Company shall become payable to the party
designated by Consultant.
VI. Expenses. Consultant acknowledges receipt of a $2,000 unallocated
expense allowance paid by TDI in 2002, and agrees that no other expenses
are due and owing from TDI as a result of services rendered pursuant to
this Agreement.
VII. Taxes. Each Party has received its own tax advice and shall be
responsible for its own taxes that may arise as a result of this
Agreement.
VIII. Rules of Construction.
A. Entire Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof and
supercedes all negotiations, prior agreements and contemporaneous
agreements, discussions and understandings of the parties in
connection with the subject matter hereof.
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B. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Colorado. Venue and
Jurisdiction shall be in Denver County, Colorado.
C. Amendments. No change, modification or termination of any of the
terms, provisions or conditions of this Agreement shall be
effective unless made in writing and signed by all parties hereto,
their successors or assigns.
D. Binding Effect on Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto
and their respective successors, personal representatives, heirs
and assigns.
E. Severability. If any Article, or other provision of this
Agreement, or the application thereof, is held to be invalid,
illegal, or unenforceable in any respect or for any reason, the
remainder of this Agreement, and the application of the Article,
Section or Provision to a person or circumstance with respect to
which it is valid, legal or enforceable, shall not be affected
thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement (This is a different label then that shown at the top of the
document) as of the day and year first written above.
XXXXX X. XXXXXXX TANGIBLEDATA, Inc.
BY:/s/ Xxxxx X. Xxxxxxx BY: /s/ Xxxxx Xxxxx
Xxxxx X. Xxxxxxx Xxxxx Xxxxx, President and CEO
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