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EXHIBIT 10.51
AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of October ____,
1997 (the "Effective Date"), by and between T & W FINANCIAL CORPORATION, a
Washington corporation (hereinafter referred to as "Company"), P.L.M. CONSULTING
GROUP, L.L.C., a Nevada limited liability company (hereinafter referred to as
"PLM") and the individual members of PLM whose names appear on the signature
page of this Agreement.
BACKGROUND
A. Company is a specialized commercial finance company that provides
equipment financing to small and medium-sized businesses, principally in the
form of leases.
B. Prior to the effective date of this Agreement, PLM, through its
members (as identified below), has provided certain consulting, marketing,
advisory and management services to Company.
C. Company and PLM desire for PLM to make available its members to
serve as executive officers of Company upon the terms and provisions of this
Agreement.
AGREEMENT
NOW, THEREFORE, it is agreed as follows:
1. Availability of PLM Members. PLM agrees to make available Xxxxxxx X.
Price ("M. Price"), Xxxxxx X. Xxxxx ("X. Xxxxx"), Xxxxxxx X. XxXxxxxx, Xx.
("XxXxxxxx") and Xxxx X. Xxxx ("Xxxx") to serve as executive officers of the
Company. The offices in which the individuals shall serve and the rates paid to
PLM are set forth in Section 4 below.
2. Extent of Services. So long as any individual named in Section 1 is
serving as an executive officer of the Company, each individual agrees to devote
his attention and energies to the business of the Company on a full-time basis,
and shall not, during such period in which he serves as an executive officer,
engage in any other business activity which interferes with his duties and
responsibilities for the Company.
3. Term. Subject to the rights reserved in Section 7, this Agreement
shall be effective on the date first above written, and shall continue for an
initial term of twelve (12) months. At the end of that period, it shall be
automatically renewed from year to year
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thereafter unless it is terminated by either party giving written notice of
termination to the other at least thirty (30) days prior to the end of the
initial term or any renewal term.
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4. Fees.
4.1 Base Fee. From and after the Effective Date of this Agreement, PLM
agrees to make available the following individuals to serve in the capacity and
at the rate opposite their respective names ("Base Fee"):
Name Position Rate
---- -------- ----
M. Price CEO $40,000/month
T. Price President $40,000/month
XxXxxxxx Sr. Vice-President/
General Counsel $20,000/month
Xxxx Xx. Vice-President/
Secretary/
Chief Financial Officer $20,000/month
The Base Fee shall be paid to PLM on the first (1st) day of each month for
services rendered by the aforementioned individuals during the preceding month.
The Base Fee payable for any partial month shall be prorated. To the extent that
an individual named in Section 4.1 fails or ceases to serve as an executive
officer of the Company, the Base Fee shall be appropriately reduced by such
individual's respective share of the Base Fee.
4.2 Incentive Fee. In addition to the Base Fee, the Company shall pay
PLM an incentive fee (the "Incentive Fee") with respect to each calendar year
equal to 35% of the amount by which the Company's audited consolidated net
income for such year (without taking into account the effect of any accruals
with respect to the payment called for by this Section 4.2 for such calendar
year) exceeds the product of (a) .20 multiplied by (b) the amount of the
shareholders' equity of the Company reflected in the Company's audited
consolidated balance sheet as of December 31st of the prior calendar year. The
Incentive Fee with respect to any calendar year shall be paid by the Company to
PLM no later than ten (10) business days after the date on which the Company
files its form 10-K with the Securities and Exchange Commission containing the
audited financial statements for such calendar year. The incentive Fee for any
partial year shall be prorated. To the extent that any individual named in
Section 4.1 fails or ceases to serve as an executive officer of Company, the
Incentive Fee for the year in which such individual ceases to so serve shall be
reduced by such individual's respective share of the Incentive Fee ( which shall
be in the same proportion as such individual's share of the Base Fee),
appropriately prorated for the number of days, if any, during such calendar year
in which such individual served as an executive officer. The Company may make
quarterly advances to PLM for anticipated Incentive
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Fees with respect to any calendar year, provided that PLM agrees to promptly
repay any such advances which exceed the final Incentive Fee calculated as
provided above.
5. Taxes. PLM and its individual members shall be responsible for, and
indemnify the Company against, any taxes, penalties and interest assessed
against the Company as a result of or attributable to PLM's receipt of the Base
Fee and/or Incentive Fee payments in accordance with this Agreement.
6. Confidentiality. In connection with the performance of services
hereunder, PLM and its members acknowledge that they may become privy to
confidential or proprietary information relating to the business and affairs of
the Company. PLM and its members agree that they shall use their best efforts
and shall cause PLM's members, employees and agents performing services on
behalf of the Company to retain all information relative to the business of the
Company in strict confidence and not to disclose any such information now or
hereafter received or obtained from the Company to any third party without the
prior consent of the Company; provided, however, that any such confidential or
proprietary information may be disclosed (i) to third parties retained by PLM on
behalf of the Company (e.g., attorneys, accountants) as shall be necessary to
perform services hereunder, (ii) to the extent such information becomes
generally available to the public other than as a result of an unauthorized
disclosure by PLM or (iii) in the event PLM, or its members, employees or agents
are compelled to disclose such information in accordance with an order from any
court of competent jurisdiction or under any provision of applicable law;
provided, however, in such event PLM shall promptly notify the Company of such
required disclosure and shall furnish only such portion of such information as
PLM is legally compelled to disclose.
7. Termination. Upon the happening of any of the following events,
either party shall be entitled to terminate this Agreement prior to the end of
the term, and except as to liabilities or claims which shall have accrued or
arisen prior to the date of such termination, all obligations hereunder shall
cease:
7.1 30 days' Prior Notice. This Agreement, or any portion of this
Agreement with respect to any individual named herein, may be terminated by
either the Company or PLM upon at least thirty (30) days prior written notice.
The parties acknowledge that, notwithstanding the foregoing, the Company may
terminate the services of any or all of the PLM members referred to in Section 1
as executive officers of the Company at any time without prior notice, in the
Company's sole discretion.
7.2 Bankruptcy or Insolvency. The filing by the other party in any
court pursuant to any statute of the United States or any state of a petition in
bankruptcy or insolvency or for reorganization or for the appointment of a
receiver or trustee of all or a substantial portion of such party's property or
the making by such party of an assignment for or petition for an agreement for
the benefit of creditors or the filing of a petition in bankruptcy against such
party which is not discharged within ninety (90) days thereafter or
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the consent to or sufferance of the application of any statute which obviates,
restricts or suspends the rights of creditors generally.
7.3 Failure to Cure Material Breach. The failure of the other party
to cure a material breach of this Agreement within thirty (30) days following
delivery of a notice from the non-breaching party setting forth the details of
such alleged breach.
8. Prior Agreement; Past Services. This Agreement supersedes any prior
agreement between the Company and PLM. Any such prior agreement is hereby
terminated as of the date hereof. The parties acknowledge that if PLM has
previously provided consulting, marketing, advisory and management services to
Company without a written agreement, then the parties hereby ratify the fees, if
any, paid to PLM by the Company for such services and acknowledge that all fees
owed pursuant to such agreement or arrangement have been paid prior to the
Effective Date.
9. Miscellaneous.
9.1 Assignment. No party may assign its rights under this Agreement
without the written consent of the other parties. Notwithstanding the previous
sentence, the Company may assign its rights under this Agreement to any entity
which is directly or indirectly controlled by the Company.
9.2 Binding Effect; Benefits. This Agreement shall inure to the
benefit of the parties and shall be binding upon the parties and their
respective heirs, personal representatives, successors and permitted assigns.
9.3 Notices. All notices, requests, demands and other communications
which are required or permitted under this Agreement shall be in writing and
shall be deemed to have been given when delivered in person or three (3) days
after deposit in the United States mail, certified postage prepaid, return
receipt requested, addressed as follows:
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If to Company, to:
T & W FINANCIAL CORPORATION
Attn: Xxxxxx X. Xxxxx, President
X.X. Xxx 0000
Xxxxxxx Xxx, XX 00000
If to PLM, to:
P.L.M. CONSULTING GROUP, L.L.C.
Xxxxxxx X. Price, Member
X.X. Xxx 0000
Xxxxxxx Xxx, XX 00000
or to such other address as any party may designate by written notice to the
other parties.
9.4 Amendment. This Agreement may only be amended by a written
instrument executed by the Company and PLM.
9.5 Severability. The invalidity of all or any part of any section
of this Agreement shall not render invalid the remainder of this Agreement or
the remainder of such section.
9.6 Governing Law. This Agreement is made in and shall be governed
and interpreted in accordance with the internal laws of the State of Washington.
DATED as of the date and year first written above.
COMPANY: T & W FINANCIAL CORPORATION
By:___________________________________
Xxxxxx X. Xxxxx, President
PLM: P.L.M. CONSULTING GROUP, L.L.C., by:
______________________________________
Xxxxxx X. Xxxxx, Member
MEMBERS
OF PLM: ______________________________________
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_____________________________________
Xxxxxxx X. Price, Member
_____________________________________
Xxxxxx X. Xxxxx, Member
_____________________________________
Xxxxxxx X. XxXxxxxx, Xx., Member
_____________________________________
Xxxx X. Xxxx, Member
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