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Exhibit 10.5
DATED 5, JULY 1999
SIGMA WIRELESS TECHNOLOGIES LIMITED
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CENTURION INTERNATIONAL, LIMITED
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CENTURION INTERNATIONAL, INC
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CONSULTANCY AGREEMENT
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Tel: ▇▇▇▇▇▇▇▇▇▇▇
Fax: 0121626 1040
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THIS AGREEMENT is made on 5 July 1999
BETWEEN:
(1) SIGMA WIRELESS TECHNOLOGIES LIMITED a company organised under the laws
of Ireland of ▇▇▇▇▇ Avenue, Finglas. ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ ("Consultant")
and
(2) CENTURION INTERNATIONAL, LIMITED (Company No: 3400714) a company
registered in England whose registered office is situated at ▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ RP19 3XU
("Client")
(3) CENTURION INTERNATIONAL, INC a company organised under the laws of
Nebraska of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ("Guarantor")
WHEREAS:
(A) The Consultant is a former manufacturer of moulded products for the
hand-held wireless communication industry and has considerable skill
and experience in the industry.
(B) The parties have agreed that with effect from the Commencement Date the
Consultant shall provide and the Client shall make use of certain
consulting services described herein on the terms set out below.
IT IS AGREED as follows:
1. TERM
This Agreement shall commence on the date hereof ("Commencement Date")
and shall continue in force until the second anniversary hereof and
"Term" shall be construed accordingly.
In the event that the Client terminates this Agreement prior to the
expiry of the Term or commits a repudiatory breach (which shall include
but not be limited to late payment of sums due and payable under the
provisions of clause 5 herein) the sum of US$250,000, less any sums
already paid up to the date of default or set off pursuant to clause 7
below shall be immediately due and payable notwithstanding the fact
that an appropriate invoice has not been raised in accordance with the
provisions of clause 5.1 below.
2. CONSULTANCY SERVICES
2.1 The Consultant shall during the Term provide services and procure that
the services of ▇▇▇▇ ▇▇▇▇▇ c/o Sigma Wireless Technologies Limited (and
other employees, if necessary) will be made available to undertake the
following consultancy services ("Services") to the Client:
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"The provision of advice on and consultancy support for the
Client's moulded antennae business generally and specifically
its customer relationship with Motorola";
on dates to be agreed between the parties (if any) but not more than 12
days in any period of twelve months from the Commencement Date.
2.2 The Consultant and its agents and employees shall in the performance of
the Services have and use reasonable care, skill and expertise.
2.3 The Client shall permit the Consultant reasonable access to its
premises at all times upon reasonable prior notice in order for the
Consultant to collect any items, assets or materials belonging to it
after the date of this Agreement.
3. LEGAL RELATIONSHIP
The Consultant and its agents and employees shall provide the Services
as independent contractors and not as employees, agents, partners or
officers of the Client.
4. CONFIDENTIALITY
4.1 In this Agreement "Confidential Information" means any information
which is divulged to the Consultant or which comes to its knowledge in
the course of or for the purposes of this Agreement and which is
described by the Client in writing as such or the party divulging it as
being of a confidential nature and/or which by reason of its nature or
the circumstances or manner in which it comes to the Consultant's
knowledge is apparently of such a nature but information shall not be
or shall cease to be Confidential Information if and to the extent that
it comes to be in the public domain other than as a result of the act
or default of the Consultant or its agents or employees.
4.2 At no time during or after the Term shall the Consultant make use of
Confidential Information for its own benefit or for that of any party
other than the Client or disclose Confidential Information to any other
person, firm or company other than with the authority of the Client.
4.3 Immediately upon the termination of this Agreement the Consultant shall
deliver up to the Client all books, documents, correspondence,
drawings, data, specifications, readable or computer or other machine
readable data, flow charts, coding sheets, test data, test routines,
diagnostic programs, software programs or other property belonging to
the Client and the Consultant shall not retain copies thereof.
5. CONSULTANCY FEES AND EXPENSES
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5.1 The Client shall pay to the Consultant fees ("Consultancy Fees") of US$
125,000 (exclusive of VAT) per annum whether or not Consultancy
Services are requested of the Consultant which shall be payable
quarterly in arrears upon presentation to the Client of an invoice for
the Consultancy Fees earned and any expenses incurred during the
relevant quarter.
5.2 On receipt of an invoice for Consultancy Fees the Client shall pay the
invoice together with any and all applicable VAT thereon within 10
days.
5.3 The Consultant shall not be entitled to any remuneration or other
benefit in respect of the Consultancy Services other than the
Consultancy Fees.
5.4 Subject to the Client's reasonable requirements with respect to
reporting and documentation of expenses, the Client shall repay hotel
travelling and out-of-pocket expenses incurred by the Consultant in
providing the Consultancy Services including travelling to and from the
premises of the Client or other place of assignment and in the case of
the use of any private motor car for business purposes the Client shall
reimburse the Consultant at the mileage rate allowed by the Client for
the time being but except as provided above the Consultant shall not be
entitled to be paid any expenses.
5.5 Interest at the rate of 3% per annum above the Lloyds TSB base rate
shall accrue on all sums due under this Agreement which are not paid to
the Consultant in accordance with the terms of this Agreement.
6. SET-OFF
Any amounts owed to Consultant by Client pursuant to this Agreement for
the Consultant's provision of Services will be available to satisfy any
claims for indemnification asserted by Client against Consultant
pursuant to Section 8.2 of the Asset and Share Purchase Agreement ("the
Purchase Agreement") dated as of 5 July 1999 to which the Client and
the Consultant are parties. Upon receipt of the invoice referenced in
clause 5.1 above, Client shall be obliged to pay Consultant only the
amount reflected on such invoice; minus:
6.1 any amounts subtracted by virtue of Client's claims for indemnification
under Section 8.2 of the Purchase Agreement; and
6.2 an amount equal to the sum of all unresolved claims, suits, actions or
causes of action (and costs thereof) pending, alleged or instituted
against Buyer or Target as of the date a particular payment under this
Agreement is due and arising from the Excluded Liabilities (as such
terms in this sub-clause are defined in the Purchase Agreement);
provided that any and all sums so withheld shall be paid immediately
with interest thereon calculated in accordance with the provisions of
clause 5.5 above to the Consultant upon agreement or final
determination in favour of the Consultant.
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7. DEFAULT
The sum of US$250,000 less any sum already paid under this Agreement
and any funds set off pursuant to clause 7 above shall be forthwith
repayable on the happening of any of the following events:
7.1 a petition being presented (and not withdrawn, stayed, discharged or
set aside within 21 days of such presentation) or an effective
resolution being passed or an order being made for the winding-up of
the Client or in each case any similar or equivalent procedure in any
jurisdiction other than England and Wales;
7.2 the appointment of an administrator or of an administrative receiver
over any part of the undertaking assets or property of the Client or
the levying of any distress or executions upon any of the assets or
property of the Client which is not paid out within seven days of its
being levied or in each case any similar or equivalent procedure in any
jurisdiction other than England and Wales;
7.3 The Client becoming insolvent or unable to pay its debts (as defined in
Section 123 Insolvency Act 1986) stops payment of its indebtedness or
makes a general assignment for the benefit of, or composition with, its
creditors or a moratorium is agreed or declared in respect of, or
affecting, its indebtedness;
7.4 the Client ceasing or threatening to cease to carry on its business.
8. NOTICES
8.1 Any notice given under this Agreement shall be in writing and shall be
served on the Client at its registered office or on the Consultant at
its registered office.
8.2 Any notice shall be taken to have been received on the date and time of
its actual receipt except that if correctly addressed and stamped and
sent by first class prepaid letter post it shall be taken to have been
received on the third day after posting of it.
9. GUARANTEE
9.1 In consideration of the entry of the Consultant into this Agreement the
Guarantor hereby unconditionally and irrevocably guarantees to the
Consultant on the terms of this clause 9 observance by the Client of
its obligations under or pursuant to this Agreement and agrees to
indemnify the consultancy against all reasonable losses, liabilities,
costs, charges, expenses, actions, proceedings, claims and demands
which the Consultant may suffer through or arising from any breach by
the Client of such obligations.
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9.2 If and whenever the Client defaults for any reason whatsoever in the
performance of any obligation or liability undertaken or expressed to
be undertaken by the Client under or pursuant to this Agreement, the
Guarantor shall upon demand perform (or procure performance of) and
satisfy (or procure the satisfaction of) the obligation or liability in
regard to which such default has been made in the manner prescribed by
this Agreement and so that the same benefits shall be conferred on the
Consultant as it would have received if such obligation or liability
had been duly performed and satisfied by the Client.
9.3 This guarantee is to be a continuing guarantee and is in addition to
and without prejudice to and not in substitution for any other rights
or security which the Consultant may now or hereafter have or hold for
the performance and observance of the obligations of the Client under
or in connection with this Agreement.
9.4 As a separate and independent stipulation the Guarantor agrees that any
obligation expressed to be undertaken by the Client (including, without
limitation, any moneys expressed to be payable under this Agreement)
which may not be enforceable against or recoverable from the Client by
reason of any legal limitation, disability or incapacity on or of the
Client or any other fact or circumstance (other than any material
breach by the Client of this Agreement or any limitation imposed by
this Agreement) shall nevertheless be enforceable against and
recoverable from the Guarantor as though the same had been incurred by
the Guarantor and the Guarantor was the sole or principal obligor in
respect thereof and shall be performed or paid by the Guarantor on
demand.
10. ARBITRATION
10.1 Except as otherwise expressly provided herein, all claims or
controversies between the parties (or their permitted assignees)
arising out of or relating to this Agreement shall be finally
determined by arbitration in accordance with the rules in effect from
time to time of the Chartered Institute of Arbitrators in Ireland by
one arbitrator (selected in default of agreement between the parties by
the President for the time being of the Law Society of Ireland) who is
knowledgeable concerning the law governing the dispute (which for the
avoidance of doubt shall be the laws of England) and such arbitration
shall constitute an arbitration for the purposes of the Arbitration Act
1954-1980.
10.2 The arbitration shall take place in Dublin, Ireland and the language of
the arbitration shall be English.
10.3 The arbitrator shall be empowered to permit reasonable discovery and
shall have the authority to award all forms of relief determined to be
just and equitable. Any arbitral award rendered pursuant to this Clause
10 shall be final and binding on the Consultant, the Client and the
Guarantor and may be enforced in any Court of competent jurisdiction.
For this and any other purpose, each of the Consultant, the Client and
the Guarantor (i) waives any bond, surety or other security that might
be required of any other party in respect thereto, and (ii)
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agrees that any part may make service on the other party by sending or
delivering a copy of the proceeds to such party at the address and in
the manner provided for the giving of notices in Section 11 below or in
any other manner permitted by law.
10.4 All instances of arbitration, the costs of arbitration shall be borne
by the unsuccessful party, except in the event that determination of
success is not clear cut, in which case the cost of arbitration shall
be allocated by the Arbitrator, having regard to the nature of the
dispute, the contentions of the parties and his or her decision on the
merits of the dispute.
11. NOTICES
All notices, demands and other communications given or delivered under
this Agreement will be in writing and will be deemed to have been given
when personally delivered, mailed by first class mail, return receipt
requested, or delivered by express courier service or telecopied.
Notices, demands and communications to the Client, the Consultant and
the Guarantor will, unless another address is specified in writing, be
sent to the address indicated below:
Notices to Consultant
Sigma Wireless Technologies Limited
▇▇▇▇▇ Avenue
Finglas, Dublin 11
Ireland
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Notices to Client and Guarantor
Centurion International, Limited
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Attention: ▇▇▇▇ ▇▇▇▇
with a copy to:
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Centurion International, Inc
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ International
International Financial Centre
Old Broad Street
London, EC2N 1HQ
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ Alt
Any party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set
forth above using any other means (including personal delivery,
expedited courier, messenger service, telecopy, ordinary mail, or
electronic mail) but no such notice, request, demand, claim, or other
communication shall be deemed to have been duly given unless and until
it actually is received by the intended recipient. Any Party may change
the address to which notices, requests, demands, claims and other
communications hereunder are to be delivered by giving the other
Parties notice in the manner herein set forth.
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SIGNED by A ▇▇▇▇▇ ) /s/ A ▇▇▇▇▇
for and on behalf of SIGMA WIRELESS )
TECHNOLOGIES LIMITED )
in the presence of: ) /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Signature of Witness:
Name of Witness:
Address:
SIGNED by ▇▇▇▇ ▇▇▇▇ ) /s/ ▇▇▇▇ ▇. ▇▇▇▇
for and on behalf of CENTURION )
INTERNATIONAL, LIMITED )
in the presence of: ) /s/ V. Stoiljkoic
Signature of Witness: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name of Witness: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
SIGNED by ▇▇▇▇ ▇▇▇▇ ) /s/ ▇▇▇▇ ▇. ▇▇▇▇
for and on behalf of CENTURION )
INTERNATIONAL, INC )
in the presence of: ) /s/ V. Stoiljkoic
Signature of Witness: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name of Witness: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇. ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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