CONSULTING AGREEMENT
Exhibit
10.7
This
Consulting Agreement (the “Agreement”) is made and entered into as of the first
day of August 2007, by and between Sequoia Media Group, LC, a Utah limited
liability company (the “Company”), and Amerivon Holdings LLC, a Nevada limited
liability company (the “Consultant”).
RECITALS
A. The
Company, a private company, is contemplating a merger or similar type of
liquidity event with Secure Alliance Holdings Corp., a publicly traded company
(“SAH”), or an affiliate thereof (the “Transaction”).
B. The
Consultant has certain skills, knowledge, and abilities relating to advising the
Company on certain aspects relating to operating effectively as a public
company.
C. The
Company desires to engage the Consultant and the Consultant desires to be
engaged by the Company on the terms and conditions set forth below.
NOW,
THEREFORE, in consideration of the foregoing, the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as
follows:
AGREEMENT
1. Engagement. The
Company hereby engages the Consultant and the Consultant hereby accepts
engagement by the Company upon the terms and conditions hereinafter set
forth.
2. Term. The
Company engages the Consultant hereunder for a term (the “Term”) of twelve (12)
months from August 1, 2007 through July 31, 2008, unless terminated earlier in
accordance with the provisions of Section
6. The parties may extend the Term by mutual written consent
under terms and conditions mutually agreeable.
3. Duties. The
Consultant shall assist the Company in reviewing an updated business
plan for the Company as the control part post- Transaction by, among other
things, advising the Company with respect to (i) the
financial planning of the Company incorporating the proposed
Transaction, (ii) reviewing the Company processes including Board of Director
compensation, Audit and Compensation Committee formation, (iii)
interviewing potential new Board of Director members, and (iv) for up
to six months beyond closing of Transaction, continuing to assist the Company
with the identification of market-makers, Sarbanes Oxley requirements planning,
and public and investor relations programs.
4. Extent of
Services. During the Term, the Consultant shall provide the
services of its personnel as reasonably necessary in order to render services to
the Company. There is no minimum or maximum limit on the number of
hours that the Consultant is required to expend.
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5. Compensation. As
consideration for providing consulting services, the Company shall pay the
Consultant a total fee (the “Fee”) of Seven Hundred Seventy-Five Thousand
Dollars ($775,000), subject to adjustment upon termination as set forth in Section
6. As consideration for providing consulting services,
the Company shall pay the Consultant a total fee (the “Fee”) of Seven Hundred
Seventy-Five Thousand Dollars ($775,000). The Company shall pay the
Consultant Ten Thousand Dollars ($10,000) on the first day of each month
commencing August 2007 through and including January 2007, and the Company shall
pay the Consultant One Hundred Nineteen Thousand One Hundred Sixty-Seven Dollars
($119,167) on the first day of each month commencing February 2008 through and
including July 2008. Notwithstanding the foregoing, the Company
shall pay the Consultant all unpaid amounts of the Fee on the closing of the
Transaction.
6. Termination.
(a) On
Notice. Either party may terminate this Agreement upon thirty
(30)-days prior written notice to the other party. In the event of
termination the fee shall be adjusted and only that portion of Fee that has
become due through the first day of the calendar month during which the
Agreement was terminated shall be due and payable. The balance of the
Fee for the months following the date of termination shall be waived except as
provided in Section 6(b). Upon of the closing of the Transaction, the
Agreement is no longer subject to termination by the Company.
(b) Fee. If
the Company closes the Transaction within twelve (12)-months after the date of
termination of this Agreement, then the Company shall pay the Consultant all
unpaid amounts of the Fee on the closing of the Transaction.
(c) Survival. The
following sections of this Agreement shall survive any termination or expiration
of this Agreement: Sections 6(b), 7, and 8.
7. Relationship of
Parties. The parties intend and agree that the relationship
created between them by this Agreement shall be solely that of company and
consultant, and that nothing contained in this Agreement shall be construed as
creating a joint venture, partnership, tenancy-in-common, joint tenancy, or
co-ownership relationship between the parties.
8. General
Provisions.
(a) Amendment. All
amendments or modifications of this Agreement shall be in writing and shall be
signed by each of the parties hereto.
(b) Waiver. Any
waiver of any right, power, or privilege hereunder must be in writing and signed
by the party being charged with the waiver. No delay on the part of
any party hereto in exercising any right, power, or privilege hereunder shall
operate as a waiver of any other right, power, or privilege hereunder, nor shall
any single or partial exercise of any right, power, or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power, or privilege.
(c) Notices. All
notices or other communications required or permitted to be given pursuant to
this Agreement shall be in writing and shall be delivered personally or sent by
overnight courier or by certified mail, return receipt
requested. Notices delivered personally or sent by overnight courier
shall be effective on the date received, while notices sent by certified mail,
return receipt requested, shall be deemed to have been received and to be
effective three (3) business days after deposit into the
mails. Notices shall be given to the parties at the following
respective addresses, or to such other addresses as any party shall designate in
writing:
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If to the
Company ▇▇.
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Chief Executive Officer
Sequoia Media Group, LC
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If to the
Consultant: ▇▇.
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Chief Executive Officer
Amerivon Holdings LLC
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(d) Assignment. This
Agreement and each of its provisions shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns, including
any successor entity by liquidation, merger, consolidation, reorganization, sale
of assets, or otherwise.
(e) Law
Governing. This Agreement has been negotiated, executed, and
delivered and shall be performed in the State of Utah and shall be governed by
and construed and enforced in accordance with the laws of the State of Utah,
without regard for its conflict of laws rules. The parties hereby
irrevocably submit to the exclusive jurisdiction of the courts of the State of
Utah and any United States District Court situated in the State of Utah for the
purposes of construing and enforcing this Agreement.
(f) Attorneys’
Fees. Should a lawsuit be commenced to interpret or enforce
the terms of this Agreement, the prevailing party shall be entitled to recover
costs and attorneys’ fees in addition to any other recovery to which such party
may be entitled.
(g) Arbitration. If
any dispute arises concerning the interpretation, validity, or performance
of this Agreement or any of its terms and provisions, including but not limited
to the issue of whether or not a dispute is arbitrable, (i) if the amount
claimed by a party is equal to or less than the jurisdictional limit of the Utah
Small Claims Court, then the parties shall resolve such matter in the Utah Small
Claims Court, or (ii) if the amount claimed by the party exceeds the
jurisdictional limit of the Utah Small Claims Court, then the parties shall
submit such dispute for binding determination before a retired judge selected
from JAMS, Inc. or any similar organization mutually acceptable to the
parties. The parties shall mutually agree on one arbitrator from the
list provided by the arbitrating organization; provided that if the parties
cannot agree, then each party shall select one arbitrator from the list, and the
two arbitrators so selected shall agree upon a third arbitrator chosen from the
same list, which third arbitrator shall determine the dispute. The
arbitration shall take place in Salt Lake County, and shall be conducted in
accordance with the then prevailing rules of the arbitrating organization,
except as set forth in this Section
8(g). The parties shall have all rights for depositions and
discovery as provided by the Utah law. The arbitrator shall apply
Utah substantive law and the Utah Evidence Code to the
proceeding. The arbitrator shall have the power to grant all legal
and equitable remedies including provisional remedies and award compensatory
damages provided by law, but the arbitrator may not order relief in
excess of what a court could order. The arbitrator shall not have
authority to award punitive or exemplary damages. The arbitrator
shall prepare and provide the parties with a written award including factual
findings and the legal reasoning upon which the award is based. The
arbitrator shall not have the power to commit errors of law or legal reasoning
or to make findings of fact except upon sufficiency of the
evidence. Any award that contains errors of law or legal reasoning or
makes findings of fact except upon the sufficiency of the evidence exceeds the
power of the arbitrator, and may be corrected or vacated as provided by
applicable law. The arbitrator shall award costs and attorneys’ fees
in accordance with the terms and conditions of this Agreement. Any
court having jurisdiction may enter judgment on the award rendered by the
arbitrator, or correct or vacate such award as provided by applicable
law. The parties understand that by agreement to binding arbitration
they are giving up the rights they may otherwise have to trial by a court or a
jury and all rights of appeal, and to an award of punitive or exemplary
damages. Pending resolution of any arbitration proceeding, either
party may apply to any court of competent jurisdiction for any provisional
remedy, including but not limited to a temporary restraining order or a
preliminary injunction but excluding any dispute relating to discovery matters,
and for enforcement of any such order. The application for or
enforcement of any provisional remedy by a party shall not operate as a waiver
of the within agreement to submit a dispute to binding arbitration.
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(h) Counterparts. This
Agreement may be executed in two or more counterparts, including by facsimile
transmission, all of which together shall constitute a single
instrument.
(i) Severability of
Provisions. In the event any one or more of the provisions of
this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
(j) Construction. The
headings in the sections and paragraphs of this Agreement are for convenience
only and shall not constitute a part hereof. Whenever the context so
requires, the masculine shall include the feminine and the neuter, the singular
shall include the plural, and conversely. All references to numbered
sections contained herein refer to the sections of this Agreement unless
otherwise expressly stated. The terms and all parts of this Agreement
shall in all cases be interpreted simply and according to their plain meaning
and neither for nor against any party hereto.
IN
WITNESS WHEREOF, the parties have duly executed and delivered this Agreement as
of the date first written above.
| Sequoia Media Group, LC | Amerivon Holdings LLC | ||||
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