EXHIBIT 10.8
DATED May 18, 2005
ICURIE LAB HOLDINGS LIMITED
and
CHL INVESTMENT PARTNERSHIP
and
HANSEN GRAY & COMPANY, INC
REVENUE SHARE AGREEMENT
TAYLOR WESSING
Carmelite
50 Victoria Embankment
Blackfriars
London EC4Y 0DX
Tel +44 (0)20 7300 7000
Fax +44 (0)20 7300 7100
DX 41 London
Ref: SXW/MXR
INDEX
CLAUSE NO. PAGE NO.
1. DEFINITIONS AND INTERPRETATION................................................................ 1
2. PROVISION OF FINANCIAL INFORMATION............................................................ 3
3. REVENUE SHARE................................................................................. 3
4. TERMINATION................................................................................... 3
5. NOTICES AND OTHER COMMUNICATIONS.............................................................. 3
6. ASSIGNMENT.................................................................................... 5
7. NO SET-OFF.................................................................................... 5
8. ENTIRE AGREEMENT.............................................................................. 5
9. GENERAL....................................................................................... 6
10. GOVERNING LAW AND JURISDICTION................................................................ 6
THIS AGREEMENT is made on May 18, 2005
BETWEEN
(1) ICURIE LAB HOLDINGS LIMITED (registered in England and Wales under number
05075133) the registered office of which is at 12 Plumtree Court, London
EC4A 4HT (the "COMPANY");
(2) CHL INVESTMENT PARTNERSHIP the principal place of business of which is at
475-1 Gwachundong, Gwachun Shi, Gyeong Gi Do, Korea, 427-080 ("CHL"); and
(3) HANSEN GRAY & COMPANY, INC. the principal place of business which is at
3875 Johns Creek Parkway, Suite A, Suwanee, Georgia, 30024, United States
("HG").
INTRODUCTION
(A) Since the Company's incorporation on 16 March 2004 and subsequent
investment by HG on 16 March 2004, HG and CHL have worked to expand the
Company's business and develop certain cooling technology.
(B) On May 18, 2005, the shareholders of the Company unanimously agreed that
each of CHL and HG should have the right to receive certain payments in
accordance with the terms and conditions set out in this agreement.
AGREED TERMS
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this agreement including the introduction, capitalised terms used, have
the meaning set out below:
"ACCOUNTS" means the audited accounts of the Company for a Financial
Period;
"BUSINESS" means the business of the Company as carried on at today's
date;
"BUSINESS DAY" means a day other than a day that is a Saturday, Sunday or
public holiday in England;
"COMPANIES ACT" means the Companies Act 1985;
"COMMENCEMENT DATE" means today's date;
"CUMULATIVE REVENUE" means the aggregate of all revenue received by the
Company after the date of this agreement in respect of the Business;
"FINANCIAL PERIOD" - means an accounting period as defined in the
Companies Act;
"FIRST QUALIFYING PERIOD" means the first Financial Period ending after
the date of this agreement in which the Cumulative Revenue of Company is
at least equal to the Qualifying Revenue Amount;
"PAYMENTS" means any payments made to HG and CHL in accordance with the
terms of this agreement;
"QUALIFYING PERIODS" means the First Qualifying Period and/or any
Subsequent Qualifying Periods;
"QUALIFYING REVENUE AMOUNT" means US$25,000,000 (twenty five million US
dollars);
"SUBSEQUENT QUALIFYING PERIOD" means any Financial Period following the
First Qualifying Period;
"TAX" or "TAXATION" means any form of tax (including, but not limited to,
income tax required to be deducted or withheld or accounted for in respect
of any payment), levy, impost, duty, charge, contribution (including, but
not limited to, National Insurance contributions), deduction or
withholding whenever imposed, collected or assessed by, or payable to, a
Tax Authority and any penalty, charge, cost and interest included in or
relating to any of the above or to any obligation in respect of any of the
above;
"TAX AUTHORITY" means any government, state or municipality or any local,
state, federal or other fiscal, revenue, customs or excise authority, body
or official in the United Kingdom or elsewhere; and.
"TAXATION LIABILITY" " means the liability of the Company to make payments
of, or in respect of, Tax.
1.2 Interpretation
In this agreement:
(a) reference to:
(i) any statute or statutory provision includes a reference:
(A) to that statute or statutory provision as from time to
time consolidated, modified, re-enacted (with or without
modification) or replaced by any statute or statutory
provision; and
(B) any subordinate legislation made under the relevant
statutory provision;
(ii) the singular includes the plural and vice versa and any gender
includes other genders;
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(iii) "THIS AGREEMENT" includes this agreement as amended or
supplemented from time to time;
(b) the table of contents and the headings to clauses and schedules are
to be ignored in construing this agreement;
(c) the words, "PARENT UNDERTAKING", "SUBSIDIARY UNDERTAKING" and
"UNDERTAKING" have the meanings given to them in sections 258 and
259 of the Companies Act 1985.
2. PROVISION OF FINANCIAL INFORMATION
2.1 Within 25 Business Days of the approval of the Accounts by the Company in
general meeting the Company shall procure that a copy of the Accounts is
sent to each of CHL and HG.
3. REVENUE SHARE
3.1 When the Company achieves Cumulative Revenue equal to the Qualifying
Revenue Amount, HG and CHL shall receive the following amounts payable in
accordance with clause 3.2;
(a) in the First Qualifying Period:
(i) in respect of CHL, 1.14% of the Cumulative Revenue minus
$25,000,000 USD;
(ii) in respect of HG, 0.86% of the Cumulative Revenue minus
$25,000,000 USD;
(b) in any Subsequent Qualifying Period:
(i) in respect of CHL, 1.14% of (1) the Cumulative Revenue minus
$25,000,000 USD, less (2) the aggregate of Payments made in
respect of previous Qualifying Periods;
(ii) in respect of HG, 0.86% of (1) the Cumulative Revenue minus
$25,000,000 USD, less (2) the aggregate of Payments made in
previous Qualifying Periods.
3.2 Any amounts payable to CHL and HG pursuant to clause 3.1 shall be made
within 25 Business Days of the adoption of the Accounts for the relevant
Qualifying Period by bank transfer to such bank account as CHL and HG may
notify to the Company in writing from time to time.
4. TERMINATION
4.1 This agreement shall terminate when the Payments received by HG and CHL
under this agreement equal in aggregate US$50,000,000 (fifty million US
dollars).
5. NOTICES AND OTHER COMMUNICATIONS
5.1 Where this agreement provides for the giving of notice or the making of
any other communication, such notice or communication shall not (unless
otherwise expressly provided) be effective unless given or made in writing
in English in accordance with the following provisions of this clause 5.
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5.2 Any notice or communication to be given or made under or in connection
with this agreement may be:
(a) delivered or sent by post to:
the Company The address set out at the front of this
agreement.
CHL The address set out at the front of this
agreement.
HG The address set out at the front of this
agreement.
or
(b) sent by fax, email or other electronic communication, to:
the Company To be provided by the Company at a later
date
CHL 822-245-23650
HG (678) 542-2100
and shall be marked in the case of the Company for the attention of
the Managing Director in the case of HG, for the attention of Alan
Miller and in the case of CHL for the attention of Dr. Lee.
5.3 Any notice or other communication so delivered or sent shall (subject to
the provisions of clause 5.4 (c)) be deemed to have been served at the
time when it is received at the address to which it is delivered or sent
except that if that time is between 5.30 p.m. on a Relevant Day and 9.00
a.m. on the next Relevant Day it shall be deemed to have been served at
9.00 a.m. on the second of such Relevant Days.
5.4 Where a party has given notice to the others of any different address or
number to be used for the purposes of this clause then such different
address or number shall be substituted for that shown above.
For the purposes of this clause:
(a) "POSTAL ADDRESS" means the address shown in clause 5.2(a).
(b) "RELEVANT DAY" means any day other than a Saturday, Sunday or a day
which is a public holiday at the Postal Address of the receiving
party;
(c) any reference to a time is to the time at the Postal Address of the
receiving party;
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(d) reference to an electronic communication (including a fax) being
received shall, in the case of a party which is a corporate body or
partnership, mean receipt at the first device hosting electronic
communication services for that corporate body or partnership at
which it is received and, in the case of a party who is an
individual, shall mean receipt on a device owned (or used for
reading electronic communications) by the individual which receipt
shall, notwithstanding the provisions of clause 5.3, and in the
absence of evidence of earlier receipt, be deemed to have occurred
96 hours after sending; and
(e) "electronic communication" has the same meaning as in the Electronic
Communications Act 2000.
6. ASSIGNMENT
6.1 CHL and HG may at any time assign or transfer its rights under this
agreement to any party provided that such an assignment or transfer does
not increase the Company's obligations in any way.
7. WITHHOLDING
7.1 The Company shall be entitled to withhold and/or deduct any amounts from
any payment due under this agreement in respect of Tax as are necessary to
satisfy any Taxation Liability which is incurred by the Company in
relation to making the Payments to HG and CHL .
8. ENTIRE AGREEMENT
8.1 This agreement constitutes the entire agreement between the parties about
the subject matter of this agreement and supersedes all earlier
understandings and agreements between any of the parties and all earlier
representations by any party about such subject matter).
8.2 The parties have not entered into this agreement in reliance upon any
representation, warranty or promise and no such representation or warranty
or any other term is to be implied in it whether by virtue of any usage or
course of dealing or otherwise except as expressly set out in it.
8.3 If a party has given any representation, warranty or promise then, (except
to the extent that it has been set out in this agreement) the party to
whom it is given waives any rights or remedies which it may have in
respect of it.
8.4 This clause shall not exclude the liability of a party for fraud or
fraudulent misrepresentation or concealment or any resulting right to
rescind this agreement.
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9. GENERAL
The Contracts (Rights of Third Parties) Act 1999
9.1 Except as provided in clause 6.1 and 9.2, a person who is not a party has
no right to enforce any term of this agreement under the Contracts (Rights
of Third Parties) Act 1999.
9.2 Dr. Lee may enforce the terms of this agreement on behalf of CHL
Partnership notwithstanding that he is not a party.
No Partnership
9.3 This agreement is not intended to and does not operate to create a
partnership between the parties or any of them, or to authorise any party
to act as agent for any other, and no party shall have authority to act in
the name or on behalf of or otherwise to bind any other party.
Variation
9.4 This agreement may only be varied in writing signed by or on behalf of
each of the parties.
Waiver and Remedies
9.5 A waiver of any term, provision or condition of, and any consent or
approval granted under, this agreement will be valid only if it is in
writing, signed by the party giving the waiver or granting the consent or
approval. Any such waiver, consent or approval will be valid only in the
particular instance and for the particular purpose for which it is given
and will not constitute a waiver of any other right or remedy.
9.6 Any failure (in whole or in part) to exercise or delay in exercising any
right, power or remedy ("RIGHT") available under this agreement or in law
will not constitute a waiver of that or any other Right nor will any
single or partial exercise of any Right preclude any other or further
exercise of that or any other Right. The rights and remedies provided by
this agreement are cumulative and (unless otherwise expressly stated in
this agreement) and may be exercised without excluding any other rights or
remedies available in law.
Counterparts
9.7 This agreement may be executed in any number of counterparts, each of
which, when executed and delivered, is an original, but all the
counterparts taken together shall constitute one document. This agreement
shall not take effect until all the parties have executed it.
10. GOVERNING LAW AND JURISDICTION
10.1 This agreement (and any dispute or claim relating to it, its
enforceability or its termination) is to be governed by and construed in
accordance with English law.
10.2 The courts of England and Wales shall have exclusive jurisdiction to
settle any dispute between the parties whether arising in connection with
this agreement or otherwise. The parties to this agreement irrevocably
submit to such jurisdiction and waive any objection to it, on the ground
of inconvenient forum or otherwise. No party shall oppose the recognition
or
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enforcement of a judgment, order or decision of those courts in respect of
any such claim or dispute by the courts of any state which, under the laws
and rules applicable in that state, are competent or able to grant such
recognition or enforcement.
10.3 A party may bring proceedings in the courts of any state other than
England and Wales for the purpose of seeking:
(a) an injunction, order or other non-monetary relief (or its equivalent
in such other state); and/or
(b) any relief or remedy which, if it (or its equivalent) were granted
by the courts of England and Wales, would not be enforceable in such
other state.
This deed has been executed and delivered as a deed on the date shown at the
beginning.
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SIGNED AS A DEED )
for and on behalf of )
ICURIE LAB HOLDINGS LIMITED )
Director, Jeong Hyun Lee
/s/ Jeong Hyun Lee
---------------------------
Director, Alan B. Miller
/s/ Alan Miller
---------------------------
SIGNED AS A DEED )
for and on behalf of )
HANSEN GRAY & COMPANY, INC. )
Authorised signatory,
David M. Walker, President
/s/ David Walker
---------------------------
Authorized signatory,
Alan B. Miller, Director
/s/ Alan Miller
---------------------------
SIGNED AS A DEED )
for and on behalf of )
CHL INVESTMENT PARTNERSHIP. )
Authorised signatory,
Jeong Hyun Lee, General Partner
/s/ Jeong Hyun Lee
---------------------------
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