Exhibit 10.5
MANAGEMENT AND CONSULTING AGREEMENT
TC MANAGEMENT IV, L.L.C.
XXXXXXXX XXXXX & PARTNERS MANAGEMENT, L.P.
JULY 14, 0000
Xxxxxxx Xxxxxxxx, Inc.
00000 X.X. 00xx Xxxxx
Xxxxxxx, XX 00000
RE: MANAGEMENT AND FINANCIAL ADVISORY SERVICES
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Gentlemen:
This letter will confirm the agreement among TC Management IV,
L.L.C., a Delaware limited liability company ("Xxxxxx"), Xxxxxxxx Xxxxx &
Partners Management L.P., a Delaware limited partnership, ("Xxxxxxxx Xxxxx"
and together with Xxxxxx, the "Consultants") and Pacific Circuits, Inc., a
Washington corporation ("Parent"), pursuant to which the Consultants will
render to Power Circuits, Inc., a wholly-owned subsidiary of Parent (the
"Company") certain management and consulting services in connection with
corporate development activities and the operation and conduct of the
Company's business. Consultants shall commence providing these services as of
the date of this letter agreement (this "Agreement"). Consultants and the
Company shall agree on the specific type and extent of services to be
provided pursuant to this Agreement.
1. As consideration for the management and consulting
services to be provided to it by the Consultants, Parent shall pay the
Consultants a quarterly fee of $75,000 payable on the first business day of
each calendar quarter. Such quarterly fee shall be paid 60% to Xxxxxx and
40% to Xxxxxxxx Xxxxx. Fees for future services shall be prorated for any
partial calendar quarter during which the Consultants perform services
hereunder. Upon the completion of future acquisitions of printed circuit
board companies, the Board of Directors of the Parent will determine an
appropriate increase in the management fee based upon the size, complexity
and condition of the acquired businesses.
2. In addition to the management and consulting services
referenced above, the Consultants shall provide financial advisory services
in connection with potential acquisitions by the Parent and any transactions
relating to the refinancing, public or private offering or sale of all or any
part of the Parent's assets or capital stock to any persons, in each case
whether by way of merger, consolidation, reorganization, recapitalization,
offering, partnership, joint venture or otherwise (collectively,
"Transactions"). In connection with any Transaction, the Parent shall pay to
the Consultants a Transaction fee in the amount not to exceed to 1.00% of the
proceeds of sale (in case of a sale of assets or stock) or the value of the
Transaction (as customarily determined). Such Transaction fee shall be paid
60% to Xxxxxx and 40% to Xxxxxxxx Xxxxx.
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3. The Consultants shall also be entitled to receive (or be
reimbursed for) their reasonable out-of-pocket expenses incurred in
connection with services performed hereunder, upon submission of appropriate
receipts and documentation in support thereof.
4. The doing of any act or the failure to do any act by
either Consultant or any of its officers, directors, employees, partners,
members or affiliates, or any person who controls any of the foregoing, the
effect of which may or does cause or result in loss or damage to the Parent
or its affiliates, shall not subject such Consultant, or any of such persons
or entities, to any liability to the Parent, its affiliates or any of their
respective officers, directors, shareholders, employees or affiliates, or to
any other person whatsoever, except to the extent such loss or damage is
found in a final, nonappealable judgment by a court of competent jurisdiction
to have resulted from the willful misconduct of such Consultant.
In addition to its agreements and obligations under this
Agreement, the Parent agrees to indemnify and hold harmless each Consultant
and its affiliates (including its and their respective officers, directors,
stockholders, partners, members, employees, affiliates and agents) (each
indemnitee is referred to herein as an "Indemnified Person") from and against
any and all claims, liabilities, losses and damages (or actions in respect
thereof), in any way related to or arising out of the performance by such
Indemnified Person of services under this Agreement, and to reimburse each
Indemnified Person for reasonable legal and other expenses incurred by it in
connection with or relating to investigating, preparing to defend, or
defending any actions, claims or other proceedings (including any
investigation or inquiry) arising in any manner out of or in connection with
such Indemnified Person's performance or non-performance under this Agreement
(whether or not such Indemnified Person is a named party in such
proceedings); PROVIDED, HOWEVER, that the Parent shall not be responsible
under this paragraph for any claims, liabilities, losses, damages or expenses
to the extent that they are finally judicially determined to result from
actions taken by such Indemnified Person that constitute willful misconduct.
5. The Consultants shall perform the services described herein
until the Consultants deliver a written letter of resignation signed by each
Consultant to the Parent, which the Consultants may do in their sole discretion,
at any time, and for any reason or no reason.
6. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their legal representatives, successors and
assigns. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the state of Washington applicable to
agreements made and entirely to be performed within such jurisdiction.
If the foregoing is acceptable to you, please sign this letter in
the space provided below and return it to the undersigned.
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Very truly yours,
TC MANAGEMENT IV, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Authorized Representative
XXXXXXXX XXXXX & PARTNERS MANAGEMENT, L.P.
By: XXXXXXXX XXXXX & PARTNERS, INC., its
general partner
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
ACCEPTED AND AGREED TO:
PACIFIC CIRCUITS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Secretary
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