Exhibit 8
Financial Advisory Agreement
This Agreement is made effective as of October 15, 2003, by and between STEAG
Electronic Systems Aktiengesellschaft, of Xxxxxxxxxxxxxx Xxxxxxx 0-0, 00000
Xxxxx, Xxxxxxx, and Semiconductor Advisors LLC, of 00 Xxxxxx Xxxx, Xxxxx Xxxxxx,
Xxx Xxxx 00000.
In this Agreement, the party who is contracting to receive services shall be
referred to as "STEAG" and the party who will be providing the services shall be
referred to as "Semiconductor Advisors".
Semiconductor Advisors has a background in financial and strategic investment
advice and is willing to provide services to STEAG based on this background.
STEAG desires to have services provided by Semiconductor Advisors. STEAG's
objectives are to sell, for cash, STEAG's entire investment in Xxxxxxx
Technology, preferably by the end of 2004, to maximize the return to STEAG by
optimizing the selling process, timing sales appropriately and reducing fees
where possible and to do so without negatively impacting Xxxxxxx'x financial
position or standing in the investment community.
Therefore, the parties agree as follows:
1. Description of Services
Beginning on October 15, 2003, Semiconductor Advisors will provide the
following services (collectively, the "Services"): Manage, direct and
oversee the sale of STEAG's ownership position, in whole or in part, in
Xxxxxxx Technology, including board presentations, investment bank
oversight, private and/or public sales to investors. STEAG represents that
notwithstanding STEAG's reservation in Section 5 Semiconductor Advisors
shall have the exclusive right to perform the Services.
2. Performance of Services
The manner in which the Services are to be performed and the specific hours
to be worked by Semiconductor Advisors shall be determined by Semiconductor
Advisors. STEAG will rely on Semiconductor Advisors to work as many hours
as may be reasonably necessary to fulfill Semiconductor Advisors's
obligation under the Agreement. Semiconductor Advisors shall prepare
regular monthly progress and action reports to STEAG.
3. Payment
STEAG will pay a fee to Semiconductor Advisors for the Services in the
amount of $10,000.00 per month. These monthly payments will be subtracted
from any commission payments due under Section 5. The aforesaid monthly
payments shall be paid by STEAG within fifteen (15) days of the end of the
months in which Semiconductor Advisors rendered its services.
4. Expenses
STEAG will bear all appropriate travel expenses (flights, hotel
accommodation) in connection with the performance of its services under
this Agreement. Semiconductor Advisors will prove all travel expenses with
the necessary documents. The expenses will be paid in due course after the
necessary documents have been received by STEAG.
5. Commission Payments
In addition to the payments under Section 3, STEAG will make commission
payments to Semiconductor Advisors based on one half of one percent (0.5%)
of the value of shares sold through public offerings with the use of
investment banks and one percent (1%) of the value of shares sold through
private agreements or open market transactions. For the purpose of this
Agreement, value of shares means the net dollar amount received by STEAG
after deduction of any taxes in connection with the sales of the shares.
The aforesaid commission payments shall be paid by STEAG within fifteen
(15) days after the relevant net dollar amount has been paid to STEAG.
The payment of the commission payments are subject to the closing(s) of the
transaction(s) directly due to the performance of Semiconductor Advisors
under this Agreement. STEAG reserves the right to carry out any transaction
connected to the sale of STEAG's ownership position in Xxxxxxx Technology
at its sole discretion and at any time, to terminate the sale process
without assigning any reasons therefore or to not accept any offer for a
sale. In this case STEAG will not make and Semiconductor Advisors will not
be entitled to receive commission payments. The entitlement of
Semiconductor Advisors to the commission payments will expire at September
30, 2005.
Semiconductor Advisors shall pay back any commission payments it has
received under this Agreement if the relevant share sale(s) is/are
nullified within one year after STEAG received the net dollar amount and
had has to pay it back.
6. Taxes
Any taxes and bank charges imposed on STEAG in the country from which
payments to Semiconductor Advisors by STEAG will be made (other than any
with holding tax and tax on the overall net income of Semiconductor
Advisors) shall be borne by STEAG. All other taxes, bank charges and fees
including, without limitation, those arising in the country where payment
to Semiconductor Advisors will be received, shall be borne by Semiconductor
Advisors.
7. Support Services
STEAG will not provide support services, including office space and
secretarial services, for the benefit of Semiconductor Advisors, STEAG will
provide any necessary documentation and information required to complete
the sales.
8. Term/Termination
This Agreement shall terminate automatically upon completion by
Semiconductor Advisors of the Services required by this Agreement or at the
end of eighteen months, whichever comes first.
STEAG expressly reserves its full rights during the term of this Agreement
and particularly the rights to discharge Semiconductor Advisors due to
Semiconductor Advisors' fault and to terminate and cancel this Agreement on
that account. Fault by Semiconductor Advisors shall include, but not
limited to, one or more of the following: not obtaining the minimum
performance objectives of STEAG (due to under performance by Semiconductor
Advisors); commission of a felony, or a crime or act involving moral
turpitude, fraud, disloyalty; inattention to duties and responsibilities;
moral turpitude; failure to follow any lawful directive of STEAG or their
respective designees. STEAG shall also have the right to terminate and
cancel this Agreement and terminate the Services hereunder at any time for
violation of the terms of this Agreement by Semiconductor Advisors. In any
such case of discharge, cancellation, or termination, written notice
thereof shall be given to Semiconductor Advisors which shall be effective
("Effective Date") as of the date mailed in accordance with this Agreement
or, if delivered, upon delivery to Semiconductor Advisors. Should
termination occur under the terms set forth herein, Semiconductor Advisors
shall no longer be entitled to any compensation under this Agreement from
the Effective Date. In the event this agreement is terminated for fault,
Semiconductor Advisors shall not receive Commission Payments under Section
5 and shall only receive Payment under Section 3 through the end of the
month in which the Agreement was terminated, plus reimbursement for any
outstanding expenses.
Upon termination of this Agreement for any reason Semiconductor Advisors
shall deliver to STEAG all of the books, records, files and documents, and
all other records of STEAG in the possession, custody or under the control
of the Semiconductor Advisors.
9. Semiconductor Advisors's Authority
The powers of Semiconductor Advisors are strictly limited to the purposes
defined in this Agreement and Semiconductor Advisors shall not act or enter
into any contract or hold any authority whatsoever to commit or act for or
in behalf of STEAG without express written authorization of STEAG to do so
in each particular case.
10. Relationship of Parties
It is understood by the parties that Semiconductor Advisors is an
independent contractor with respect to STEAG, and not an employee of STEAG.
STEAG will not provide fringe benefits, including health insurance
benefits, paid vacation, or any other employee benefit, for the benefit of
Semiconductor Advisors.
11. Disclosure
Semiconductor Advisors is required to disclose any outside activities or
interests that conflict or may conflict with the best interests of STEAG.
Prompt disclosure is required under this paragraph if the activity or
interest is related, directly or indirectly, to any activity that
Semiconductor Advisors may be involved with on behalf of STEAG.
12. Employees
Semiconductor Advisors' employees, if any, who perform services for STEAG
under this Agreement shall also be bound by the provisions of this
Agreement.
13. Assignment
Semiconductor Advisors obligations under this Agreement may not
be assigned or transferred to any other person, firm, or corporation
without the prior written consent of STEAG. Semiconductor Advisors is not
entitled to appoint any other advisor under this Agreement.
14. Confidentiality
STEAG recognizes that Semiconductor Advisors has and will have the
following information:
-future plans
-business affairs
-process information
-trade secrets
-technical information
-customer lists
and other proprietary information (collectively, "Information") which are
valuable, special and unique assets of STEAG and need to be protected from
improper disclosure. In consideration for the disclosure of the
Information, Semiconductor Advisors agrees that Semiconductor Advisors will
not at any time or in any manner, either directly or indirectly, use any
Information for Semiconductor Advisors's own benefit, or divulge, disclose,
or communicate in any manner any Information to any third party without the
prior written consent of STEAG. Semiconductor Advisors will protect the
Information and treat it as strictly confidential. A violation of this
paragraph shall be a material violation of this Agreement.
15. Confidentiality after Termination
The confidentiality provisions of this Agreement shall remain in full force
and effect after the termination of this Agreement.
16. Notices
All notices required or permitted under this Agreement shall be in
writing and shall be delivered in person or deposited in the United States
or German mail, postage prepaid, addressed as follows:
IF for STEAG:
STEAG Electronic Systems Aktiengesellschaft
Xxxxxxx Xxxxxxx
Member of the Board
Xxxxxxxxxxxxxx Xxxxxxx 0-0
00000 Xxxxx, Xxxxxxx
IF for Semiconductor Advisors:
Semiconductor Advisors LLC
Xxxxxx Xxxxx
President
00 Xxxxxx Xxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Such address may be changed from time to time by either party by providing
written notice to the other in the manner set forth above.
17. Entire Agreement
This Agreement contains the entire agreement of the parties and there are
no other promises or conditions in any other agreement whether oral or
written. This Agreement supersedes any prior written or oral agreements
between the parties.
18. Amendment
This Agreement may be modified or amended if the amendment is made in
writing and is signed by both parties.
19. Severability
If any provision of this Agreement shall be held to be invalid or
unenforceable for any reason, the remaining provisions shall continue to
be valid and enforceable. If a court finds that any provision of this
Agreement is invalid or unenforceable, but that by limiting such provision
it would become valid and enforceable, then such provision shall be deemed
to be written, construed, and enforced as so limited.
20. Waiver or Contractual Right
The failure of either party to enforce any provision of this Agreement
shall not be construed as a waiver or limitation of that party's right to
subsequently enforce and compel strict compliance with every provision of
this Agreement.
21. Governing Law
This Agreement shall in all respects be construed and governed by the Laws
of Germany. Place of jurisdiction shall be Essen, Germany.
22. Compliance Clause
Germany has signed the "Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions ("OECD-Convention"),
dated December 17, 1997, which was incorporated on February 15, 1999,
into German law as "Act on Combating International Bribery" (hereinafter
"ACIB"). Semiconductor Advisors confirms that it will comply in any
respect with the AGIB and not take any action related to the performance
of this Agreement that may be regarded as violation by Semiconductors
Advisors of the ACIB or may be subject to penalties under German or any
other applicable laws, regulations or administrative requirement related
to the ACIB.
Party receiving services:
STEAG Electronic Systems Aktiengesellschaft
By: /s/ Xxxxxxx Xxxxxxx
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By: /s/ Xxxxxx Xxxxxx
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Party providing services:
Semiconductor Advisors LLC
By: /s/ Xxxxxx Maine
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