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Crivello Group, LLC
3408 Dover Road
Pompano Beach, Florida 33062
Phone: (954)-532-0240
Fax: (954)-301-0202
Cell: (414)-788-6186
frank@crivello.com
November 1, 2004
Mr. Clifford Rhee President Thomas Equipment, Inc.
1818 North Farwell Avenue
Milwaukee, Wisconsin 53202
Dear David:
I am pleased to set forth the terms of the retention of Frank Crivello
("Crivello") by Thomas Equipment, Inc. (collectively with its affiliates the
"Company").
1. Crivello will assist the Company as the Company's non-exclusive
consultant in connection with the following proposed activities:
(a) providing advice as to the structure of debt and equity financing of
the Company;
(b) otherwise assisting the Company with advancing its business
objectives, including analyzing the Company's business and capital
structure models;
(c) acting as the Company's non-exclusive advisor, finder, and agent in
connection with any Acquisition or Merger ("M&A"); and
(d) acting as a representative of the Company before closure; and as the
Company's liaison after the acquisition or merger; and assist with
the integration of the acquisition into the parent Company and its
subsidiaries when requested by the Company. As used in this
Agreement, the term "M&A" shall mean (i) public and/or private
acquisition for the Company (ii) stock or asset acquisition for the
Company (iii) any merger, consolidation, reorganization,
recapitalization, business combination, or other transaction
pursuant to which the Company is acquired by, or combined with, any
third party which shall be introduced to the Company by Crivello
during the term of this Agreement (any such entity, a "Target") or
(d) the acquisition, directly or indirectly, by the Company (or by
one or more persons acting together with the Company pursuant to a
written agreement or otherwise), in a single transaction or a series
of transaction, of (A) all or substantially all of the assets of the
Target or (B) shares of the Target's capital stock. Crivello's
services will include advice with respect to valuation and
structuring of any M&A, assisting the Company in the Company's
efforts to obtain financing for any M&A, and assisting the Company
in negotiations relating to any M&A.
2. In connection with Crivello's activities on the Company's behalf,
Crivello will familiarize himself with the business, operations, properties,
financial condition, and prospects of the Company. In connection with Crivello's
role as the Company's consultant, I would expect my services to include such
additional financial advisory and related services as may be mutually agreed
upon by Crivello and the Company. The retention by the Company of Crivello as
consultant as heretofore described shall be for a period of one year from the
date hereof.
3. In connection with Crivello's activities on the Company's behalf, the
Company will cooperate with Crivello and will furnish Crivello with all
information and data concerning the Company (the "Information") which Crivello
deems appropriate and will provide Crivello with access to the Company's
officers, directors, employees, independent accountants, and legal counsel. The
Company represents and warrants that all Information made available to Crivello
by the Company will, at all times during the period of engagement of Crivello
hereunder, be complete and correct in all material respects and will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading in the light of the circumstances under which such
statements are made. The Company further represents and warrants that any
projections provided by it to Crivello will have been prepared in good faith and
will be based upon assumptions which, in light of the circumstances under which
they are made, are reasonable. The Company acknowledges and agrees that, in
rendering its services hereunder, Crivello will be using and relying on the
Information without independent verification thereof by Crivello or independent
appraisal by Crivello of any of the Company's assets. Crivello does not assume
responsibility for any information regarding the Company. Any advice rendered by
Crivello pursuant to this Agreement may not be disclosed publicly without our
prior written consent.
4. In consideration of his services pursuant to this Agreement, Crivello
shall be entitled to receive, and the Company agrees to pay Crivello $10,000 per
month.
5. In addition to the fees described in Paragraph 4 above, the Company
agrees to promptly reimburse Crivello for expenses incurred in connection with
its retention hereunder when incurred or promptly thereafter.
6. The Company agrees to indemnify Crivello in accordance with the
indemnification provisions (the "Indemnification Provisions") attached to this
Agreement as Annex A, which Indemnification Provisions are incorporated herein
and made a part hereof.
7. Either party hereto may terminate this Agreement at any time upon 30
days' prior written notice, without liability or continuing obligation, except
as set forth in the following sentence. Neither termination of this Agreement
nor completion of the assignment contemplated hereby shall affect: (i) any
compensation earned by Crivello up to the date of termination or completion, as
the case may be, including the entirety of the consulting fees referenced in
Paragraph 3 hereof; (ii) the reimbursement of expenses incurred by Crivello up
to the date of termination or completion, as the case may be, (iii) the
provisions of Paragraphs 3 through 7 of this Agreement and (iv) the
Indemnification Provisions attached as Annex A hereto which are incorporated
herein, all of which shall remain operative and in full force and effect.
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Crivello Group, LLC
3408 Dover Road
Pompano Beach, Florida 33062
Phone: (954)-532-0240
Fax: (954)-301-0202
Cell: (414)-788-6186
frank@crivello.com
8. The validity and interpretation of this Agreement shall be governed by
the law of the State of Florida applicable to agreements made and to be fully
performed therein. The Company irrevocably submits to the jurisdiction of any
court of the State of Florida or the United States District Court for the
Southern District of Florida for the purpose of any suit, action, or other
proceeding arising out of this Agreement, or any of the agreements or
transactions contemplated hereby, which is brought by or against the Company and
(i) hereby irrevocably agrees that all claims in respect of any such suit,
action, or proceeding may be heard and determined in any such court and (ii) to
the extent that the Company has acquired, or hereafter may acquire, any immunity
from jurisdiction of any such court or from any legal process therein, the
Company hereby waives, to the fullest extent permitted by law, such immunity.
The Company hereby waives, and agrees not to assert in any such suit, action, or
proceeding, in each case, to the fullest extent permitted by applicable law, any
claim that (a) the Company is not personally subject to the jurisdiction of any
such court, (b) the Company is immune from any legal process (whether through
service or notice, attachment prior to judgment, attachment in aid of execution,
execution, or otherwise) with respect to the Company's property or (c) any such
suit, action, or proceeding is brought in an inconvenient forum.
9. The benefits of this Agreement shall inure to the respective successors
and assigns of the parties hereto and of the indemnified parties hereunder and
their successors and assigns and representatives, and the obligations and
liabilities assumed in this Agreement by the parties hereto shall be binding
upon their respective successors and assigns.
10. For the convenience of the parties hereto, any number of counterparts
of this Agreement may be executed by the parties hereto. Each such counterpart
shall be, and shall be deemed to be, an original instrument, but all such
counterparts taken together shall constitute one and the same Agreement. This
Agreement may not be modified or amended except in writing signed by the parties
hereto.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
If the foregoing correctly sets forth our Agreement, please sign the
enclosed copy of this letter in the space provided and return it to us.
Very truly yours,
/s/ FRANK CRIVELLO
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Frank Crivello
Confirmed and Agreed to:
this 1st day of November, 2004
THOMAS EQUIPMENT INC.
By: /s/ DAVID MARKS
--------------------------------
Name: David Marks
Title: Chairman
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Crivello Group, LLC
3408 Dover Road
Pompano Beach, Florida 33062
Phone: (954)-532-0240
Fax: (954)-301-0202
Cell: (414)-788-6186
frank@crivello.com
Annex A
INDEMNIFICATION PROVISIONS
Thomas Equipment, Inc., a Utah corporation (the "Company"), agrees to
indemnify and hold harmless Frank Crivello ("Crivello") against any and all
losses, claims, damages, obligations, penalties, judgments, awards, liabilities,
costs, expenses, and disbursements (and any and all actions, suits, proceedings,
and investigations in respect thereof and any and all legal and other costs,
expenses, and disbursements in giving testimony or furnishing documents in
response to a subpoena or otherwise), including, without limitation the costs,
expenses, and disbursements, as and when incurred, of investigating, preparing,
or defending any such action, suit, proceeding, or investigation (whether or not
in connection with litigation in which Crivello is a party), directly or
indirectly, caused by, relating to, based upon, arising out of, or in connection
with Crivello's acting for the Company, including, without limitation, any act
or omission by Crivello in connection with its acceptance of or the performance
or non-performance of its obligations under the letter agreement dated March 15,
2003, between Crivello and the Company, as it may be amended from time to time
(the "Agreement"); provided, however, such indemnity agreement shall not apply
to any portion of any such loss, claim, damage, obligation, penalty, judgment,
award, liability, cost, expense, or disbursement to the extent it is found in a
final judgment by a court of competent jurisdiction (not subject to further
appeal) to have resulted primarily and directly from the willful misconduct of
Crivello. The Company also agrees that Crivello shall not have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Company
for or in connection with the engagement of Crivello, except to the extent that
any such liability is found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted primarily and
directly from Crivello's willful misconduct.
These Indemnification Provisions shall be in addition to any liability
which the Company may otherwise have to Crivello or the persons indemnified
below in this sentence and shall extend to the following: Crivello , its
affiliated entities, directors, officers, employees, legal counsel, agents, and
controlling persons (within the meaning of the federal securities laws). All
references to Crivello in these Indemnification Provisions shall be understood
to include any and all of the foregoing.
If any action, suit, proceeding, or investigation is commenced, as to
which Crivello proposes to demand indemnification, it shall notify the Company
with reasonable promptness; provided, however, that any failure by Crivello to
notify the Company shall not relieve the Company from its obligations hereunder.
Crivello shall have the right to retain counsel of its own choice to represent
it, and the Company shall pay the fees, expenses, and disbursements of such
counsel; and such counsel shall, to extent consistent with its professional
responsibilities, cooperate with the Company and any counsel designated by the
Company. The Company shall be liable for any settlement of any claim against
Crivello made with the Company's written consent, which consent shall not be
unreasonably withheld. The Company shall not, without the prior written consent
of Crivello , settle or compromise any claim, or permit a default or consent to
the entry of any judgment in respect thereof, unless such settlement,
compromise, or consent includes, as an unconditional term thereof, the giving by
the claimant to Crivello of an unconditional release from all liability in
respect of such claim.
In order to provide for just and equitable contribution, if a claim for
indemnification pursuant to these Indemnification Provisions is made, but it is
found in a final judgment by a court of competent jurisdiction (not subject to
further appeal) that such indemnification may not be enforced in such case, even
though the express provisions hereof provide for indemnification in such case,
then the Company, on the one hand, and Crivello , on the other hand, shall
contribute to the losses, claims, damages, obligations, penalties, judgments,
awards, liabilities, costs, expenses, and disbursements to which the indemnified
persons may be subject in accordance with the relative benefits received by the
Company, on the one hand, and Crivello, on the other hand, and also the relative
fault of the Company, on the one hand, and Crivello on the other hand, in
connection with the statements, acts, or omissions which resulted in such
losses, claims, damages, obligations, penalties, judgments, awards, liabilities,
costs, expenses, or disbursements and the relevant equitable considerations
shall also be considered. No person found liable for a fraudulent
misrepresentation shall be entitled to contribution from any person who is not
also found liable for such fraudulent misrepresentation. Notwithstanding the
foregoing, Crivello shall not be obligated to contribute any amount hereunder
that exceeds the amount of fees previously received by Crivello pursuant to the
Agreement.
Neither termination nor completion of the engagement of Crivello referred
to above shall affect these Indemnification Provisions which shall then remain
operative and in full force and effect.