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Exhibit
10.51
MANAGEMENT ADVISORY
SERVICES AGREEMENT
This MANAGEMENT ADVISORY
SERVICES AGREEMENT (this “ Agreement ”) is
entered into as of November 20, 2007, by and among Catcher
Holdings, Inc, a Delaware Corporation (the “ Company
”), and Aequitas Capital Management, Inc., an Oregon
corporation (“ Aequitas ”).
Background
Aequitas has staff skilled in
strategy development, strategic planning, marketing, general
management and corporate development and other management skills
and services. An affiliate of Aequitas has consummated an
investment in the Company on or about the date hereof. The Company
will require Aequitas’ special skills and management advisory
services in connection with its general business operations, and
Aequitas is willing to provide such skills and services to the
Company, all upon the terms and conditions set forth in this
Agreement.
Agreement
NOW, THEREFORE, in
consideration of the mutual promises contained herein, the parties
hereto, intending to be legally bound, do hereby agree as
follows:
1. Engagement . Upon
the terms and conditions herein set forth, the Company hereby
engages Aequitas for the Term (as defined below) to provide
management advisory services to the Company with regards to
business and financing strategy including the formation and
organization of the special purpose entities to support the Vivato
network infrastructure projects and the contractual arrangements
they may have with third parties. These services may be requested
from time to time by the Company in consideration for the
compensation provided for in Section 3 below.
Additionally, Aequitas will provide advisory services with regard
to strategy development, strategic planning, marketing, general
management, corporate development and such other management
services as the Company reasonably requests from time to time, and
shall be performed under the direction of the Company’s Board
of Directors. In consideration of the remuneration herein
specified, Aequitas accepts such engagement and agrees to perform
the services specified herein.
2. Term . This
Agreement shall commence on the date hereof and shall terminate
(except as provided in Section 6(f) ) on the earliest
to occur of (a) a Sale Transaction (defined below),
(b) termination by Aequitas upon 30 days written notice to the
Company, (c) the date that Aequitas or an affiliate of
Aequitas ceases to have a debt or equity investment in the Company,
or (d) the third anniversary of the date hereof (the “
Term ”); provided , however , that if no
Sale Transaction or initial Public Offering has been consummated
prior to the third anniversary of the date hereof, the Term shall
be automatically extended thereafter on a year to year basis unless
either party provides written notice to the other of its desire to
terminate this Agreement at least 30 days prior to the expiration
of the Term or any extension thereof. “ Sale
Transaction ” means (i) the sale (in one or a series
of related transactions) of all or substantially all of the
Company’s assets to a Person (defined below) or a group of
Persons acting in concert, (ii) the sale or transfer (in one
or a series of related transactions) of a majority of the
outstanding capital stock of the Company, to one Person or a group
of Persons acting in concert, or (iii) the merger or
consolidation of the Company with or into another Person that is
not an affiliate of the Company, in each case in clauses
(ii) and (iii) above under circumstances in which the
holders of a majority in voting power of the outstanding capital
stock of the Company immediately prior to such transaction
(excluding any Person or group of
persons acting in concert who are
acquiring the Company) own less than a majority in voting power of
the outstanding capital stock of the Company, or voting equity
securities of the surviving or resulting corporation or acquirer,
as the case may be, immediately following such transaction. A sale
(or multiple related sales) of assets including, without
limitation, one or more subsidiaries (whether by way of merger,
consolidation, reorganization or sale of all or substantially all
assets or securities) which constitutes all or substantially all of
the assets of the Company shall be deemed a Sale Transaction.
“ Person ” shall be construed in the broadest
sense and means and includes, without limitation, a natural person,
a partnership, a corporation, an association, a joint stock
company, a limited liability company, a trust, a joint venture, an
unincorporated organization and any other entity.
3. Advisory Fee; Success
Fee .
(a) In consideration of
Aequitas’ undertaking to provide the management advisory
services hereunder, the Company shall pay Aequitas a monthly
advisory fee of $7,500 (the “ Advisory Fee ”).
The Advisory Fee shall be payable by the Company whether or not the
Company actually requests that Aequitas provide any management
advisory services. The Advisory Fee shall be paid monthly, in
advance, on the first business day of each calendar month beginning
December 1, 2007.
(b) Notwithstanding anything
to the contrary contained herein, the Company shall accrue but not
pay the Advisory Fee if and for so long as (i) any such
payment would constitute a default (or any event which might, with
the lapse of time or the giving of notice or both, constitute a
default) under the Company’s financing agreements (a
“Default”); provided, however, that the Company shall
be obligated to pay any accrued Advisory Fees deferred under this
Section 3(b) to the extent that such payment would not
constitute a Default or (ii) Aequitas instructs the Company
not to pay all or any portion of the Advisory Fee during any
calendar month. Interest will accrue on all due and unpaid Advisory
Fees not paid pursuant to clause (i) of the preceding sentence
at the Default Rate until such Advisory Fees are paid, and such
interest shall compound annually. The “Default Rate”
shall be 12.0% per annum.
(c) In addition to the
Advisory Fee, the Company shall reimburse Aequitas promptly upon
request for all reasonable out-of-pocket expenses incurred by
Aequitas in connection with Aequitas’ obligations hereunder,
including without limitation the fees and expenses paid to
consultants, subcontractors and other third parties in connection
with such obligations, a monthly telephone charge of $50 and a
monthly administrative charge of 15% of the out-of-pocket costs and
expenses incurred.
(d) In addition to the
foregoing, the Company shall pay Aequitas a Success Fee as
described in Exhibit A attached hereto.
(e) On or before the
expiration of the Term of this Agreement (the “Expiration
Date”), the Company will pay Aequitas for any unpaid fees due
through the Expiration Date.
Page 2 of 8—MANAGEMENT ADVISORY
SERVICES AGREEMENT
4. Additional Rights and
Obligations of the Parties .
(a) During the Term, Aequitas
shall maintain in its employ, or otherwise have available to it,
personnel in its judgment sufficient in number and adequate in
ability to perform all services that Aequitas is required to
perform under this Agreement.
(b) The Company shall at all
times cooperate with Aequitas and keep Aequitas fully informed with
regard to the business and significant activities of the Company
and its subsidiaries.
(c) Aequitas shall diligently
and faithfully perform its obligations under this Agreement, but
Aequitas shall not be responsible for any loss incurred by the
Company or any of its subsidiaries as a result of any advice or
recommendations of Aequitas.
5. Indemnification
.
(a) Indemnification .
The Company agrees to indemnify and hold harmless Aequitas
(including its affiliates and its and their respective principals,
officers, directors, shareholders, partners, members, managers and
employees) from and against, and pay or reimburse Aequitas and such
other indemnified persons for, any and all actions, claims,
demands, proceedings, investigations, inquiries, liabilities,
obligations, fines, deficiencies, costs, expenses, royalties,
losses and damages (whether or not resulting from third party
claims) related to or arising out of the execution, delivery or
existence of this Agreement or the performance by Aequitas of
services under this Agreement, and to reimburse Aequitas and any
other indemnified person for out-of-pocket expenses and reasonable
legal and accounting expenses incurred by it in connection with or
relating to investigating, preparing to defend, defending,
asserting or prosecuting any actions, claims or other proceedings
(including any investigation or inquiry) arising in any manner out
of or in connection with the execution, delivery or existence of
this Agreement or Aequitas’ performance of services hereunder
(whether or not such indemnified person is a named party in such
proceeding); provided , however , that the Company
shall not be responsible under this Section 5(a) for
any claims, liabilities, losses, damages or expenses to the extent
that they are finally judicially determined (without right of
further appeal) to result from actions taken by Aequitas (or by any
other indemnified person) due to Aequitas’ (or by any other
indemnified person’s) gross negligence, willful misconduct,
bad faith or knowing violation of applicable law. The rights to
indemnification pursuant to this Agreement shall be in addition to
(but without duplication of) any other indemnification or other
rights in favor of Aequitas or its affiliates.
(b) Limitation on
Liability . The Company also agrees that neither Aequitas nor
any other indemnified person shall have any liability (whether
direct or ind
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