Exhibit 10.5
May 10, 1996
Xxxxxxxx Corporation N.V.
c/o Capital Holdings
0000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Gentlemen:
This letter will serve to memorialize the agreement previously reached
between us regarding consulting services rendered by you to Apollo International
of Delaware, Inc. (the "Company") and the compensation payable therefor. In
particular, you have rendered services in connection with non-operational
aspects of the Company's business.
1. As full payment for all services rendered by you through the date
hereof, the Company, at the Company's option, shall (i) pay you
$30,000 within ten (10) business days from the date hereof, or
alternatively (ii) issue to you 299,000 shares of the Company's Common
Stock (the "Shares") and 400,000 Common Stock Purchase Warrants (the
"Warrants") (such Shares and Warrants sometimes referred to
collectively as "Securities"). Each Warrant shall entitle the holder
to purchase one share of the Company's Common Stock for a purchase
price of $5.50 per share, for a period of three years commencing May
10, 1998. The Warrants shall expire on May 10, 2001, at which time
any unexercised Warrants shall terminate. In the event the Company
sells warrants in an initial public offering of its securities, the
Warrants issued to you will automatically convert to warrants having
the same terms as the warrants sold to the public, which will include
an increase in exercise price if the exercise price of the warrants
sold to the public exceeds $5.50 per share. Your retention of the
Shares and the exercisability of the Warrants is conditioned upon the
completion by the Company of an initial public offering before June 1,
1997, and if an initial public offering is not completed before June
1,
1997, the Warrants will terminate as of such date and the Company, at
its sole discretion, may redeem all the Shares for a total redemption
price of $1.00; provided, however, such Warrant termination and stock
redemption rights shall not be exercisable by the Company if: (i) the
parties hereto otherwise agree in writing; or (ii) on or before June
1, 1997, the Company enters into an agreement with a third party
respecting an acquisition of the Company, including without
limitation, a merger or a sale of substantially all of the assets of
the Company.
2. Concurrently herewith, you shall execute the attached Shareholders
Voting Agreement (Exhibit A) and Proxy (Exhibit B) pursuant to which
you will grant to Xxxxx X. Xxxxxx an irrevocable proxy to vote your
Shares and the Shares issuable upon exercise of the Warrants, which
proxy shall expire on the earlier to occur of: (i) May 10, 2001, and
(ii) the effective date of the Company's anticipated initial public
offering.
3. If requested by the Underwriter of any public offering, your
Securities will be subject to a "lock-up" agreement equal to the
shortest lock up granted to any other shareholders of the Company. If
permitted by the Underwriter, your Securities will be registered in
any such offering; provided if any such offering is not underwritten,
only the Shares and Shares issuable upon exercise of the Warrants will
be registered in such offering.
4. This letter will confirm that all services required to be rendered by
you have been rendered as of May 10, 1996 at which time you had fully
earned your right for compensation described in this letter. You
acknowledge that the Securities which may be issued to you are not
registered under the Securities Act of 1933, as amended, (the "Act")
and may not be sold or otherwise transferred except pursuant to
registration under the Act or pursuant to an exemption therefrom.
This will also confirm that should the Company elect to pay your
consulting fee in Shares and Warrants, you may direct such securities
to be issued to you or up to 3 additional persons or entities, subject
to the provisions of the Act; provided, however, such other persons or
entities
shall execute a Shareholder's Voting Agreement and Proxy in accordance
with Section 2 hereof.
5. By execution of this letter below, you are hereby representing and
warranting to the Company, that you are acquiring the Securities for
investment purposes only without a view to distribution of the
Securities and that you have no present intent to dispose of or
otherwise transfer the Securities nor are you a party to any agreement
for disposition of the Securities.
6. This letter may be executed in multiple counterparts, each of which
shall be deemed an original and all of which together shall be deemed
one and the same instrument.
Very truly yours,
Apollo International of Delaware, Inc.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
AGREED AND ACCEPTED:
Xxxxxxxx Corporation N.V.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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As: Managing Director of
Intertrust (Curacao) N.V.
The Managing Director
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