Exhibit 10.1.12
SERVICES AGREEMENT
ENTERED INTO THIS 15TH DAY OF JULY, 2004
THIS SERVICES AGREEMENT (this "Agreement") is made and entered into as
of the 1st day of July, 2004 (the "Effective Date") by and among Ormat
Industries Ltd., an Israeli Public corporation with principal place of business
at the Industrial Area, Yavne ("OIL"), and Ormat Systems Ltd., an Israeli
corporation with principal place of business at the Industrial Area, Yavne
("OSL").
W I T N E S S E T H:
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WHEREAS, OIL and OSL have entered, into a purchase agreement dated as
of the date hereof (the "PURCHASE AGREEMENT") pursuant to which OSL has agreed
to purchase and assume from OIL, and OIL has agreed to sell and assign to OSL,
certain assets and liabilities related to the Business (as defined in the
Purchase Agreement) all under the terms and subject to the conditions set forth
therein; and
WHEREAS, the parties to the Purchase Agreement agreed therein that OSL
shall provide corporate, financial, secretarial and administrative services to
OIL as would be set forth in a services agreement; and
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants herein contained, and other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Definitions. Unless otherwise expressly defined in this Agreement, any
capitalized term used herein shall bear the meaning ascribed to it in the
Purchase Agreement.
2. The Services. For the purposes of this Agreement, the term "SERVICES"
means corporate, financial, secretarial and administrative services as
more fully set forth in SCHEDULE 2 attached hereto. The Services shall
also include the use of office space and office equipment which is either
owned or leased or used by OSL and which may be necessary from time to
time for the provision of the Services.
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In addition, upon the request of OIL, to the extent that at the relevant
time OSL employs the adequate personnel for such tasks, OSL shall provide
to OIL engineering services related to the business of Opti Canada, Inc.
and of Opti Technologies, BV (the "ENGINEERING SERVICES").
3. Hire of Services.
3.1 Effective upon the Effective Date and until this Agreement is
terminated in accordance with its terms, OIL hereby retains OSL
to perform and provide the Services and OSL undertakes to perform
and provide the Services and the Engineering Services, if so
required, to OIL.
3.2 It is hereby agreed and clarified that the Services shall be
subject to and supervised by the Board of Directors of OIL, or
any person duly authorized by such Board of Directors.
3.3 OSL undertakes to provide the Services hereunder which are
typically performed by key officers, only through the persons
listed in SCHEDULE 3.3, attached hereto (the "SERVICE PERSONNEL")
or any amendment thereto effected pursuant to Section 3.4 below.
3.4 The list of Service Personnel may be amended either (a) by OSL,
provided the prior written consent of OIL for such amendment will
have been obtained by OSL; or (b) by a written notice from OIL to
OSL which shall be binding upon its receipt by OSL. It is hereby
clarified that any amendment to the Service Personnel initiated
by OIL shall not require any prior or subsequent OSL's approval
and/or consent in any form whatsoever. Such decision of OSL or
OIL to amend the list of Service Personnel, will be at the sole
discretion of the board of directors of the respective company,
without it being necessary to obtain the approval of the general
meeting of the shareholders of the relevant company.
3.5 Nothing in this Agreement shall prevent OIL from engaging any
other persons and/or entities in connection with the Services
provided that OSL shall not be liable or responsible in any
manner for any loss, damage, liability, expense, claim, etc. to
OIL as a result of any such other person or entities providing
Services.
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4. Acceptance by OSL. OSL hereby accepts the engagement set forth in Section
2 above and agrees to render the Services to OIL in accordance with the
terms and conditions of this Agreement and further agrees to provide for
the benefit of OIL its best judgment, efforts and skill in rendering its
Services under this Agreement.
5. Consideration. For all Services to be provided by OSL to OIL hereunder
throughout the term of this Agreement: OIL shall pay to OSL monetary
consideration of US$ Ten Thousand (10,000$) per month (the "MONTHLY
FEES") and all out of pocket expenses borne by OSL with respect to the
Services rendered hereunder. In addition, OIL shall pay OSL in
consideration for the Engineering Services a fee equal to the cost of
such services to OSL plus 10% (the "ENGINEERING FEES"), as well as any
other out of pocket expenses borne by OSL with respect to such
services. For the purpose of this section, "cost" of Engineering
Services shall be based on salaries and other benefits paid by OSL to
those employees of OSL through whom such Engineering Services are
provided to OIL, calculated in proportion to the actual time spent for
the provision of said services.
On each anniversary of this Agreement, commencing 12 months from January
1, 2005, the Monthly Fees shall be increased by the rate of increase in
the CPI in Israel during the previous 12 months period plus 10% (of such
increase).
OIL shall pay to OSL the Monthly Fees, the Engineering Fees and out of
pocket expenses, as set forth above, on a monthly basis, until the
fifteenth day of each month with respect to the previous month. Any
payment hereunder shall be paid together with VAT at the applicable rate
added to the fees mentioned above and be made by wire transfer to OSL's
bank account, the details of which shall be provided to OIL by OSL in
writing, as may be amended from time to time.
6. Term and Termination. This Agreement shall continue in effect from the
Effective Date through and including December 31, 2009 (the "INITIAL
PERIOD") and shall automatically renew for an unlimited number of
successive one (1) year renewal periods thereafter (each, a "RENEWAL
PERIOD"), unless (i) OIL provides written notice to the other that it
elects to terminate this Agreement, which such written notice must be
given not less than one hundred and eighty (180) days prior to the
expiration of the Initial Period or any Renewal Period, as the case
may be; (ii) either OIL or OSL provides written notice to the other
that it elects to immediately terminate this Agreement if the other
party becomes insolvent, makes a general assignment for the benefit of
creditors, files a voluntary petition of bankruptcy, suffers or
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permits the appointment of a receiver for its business or assets, or
becomes subject to any proceedings under any bankruptcy or insolvency
law, voluntarily or otherwise, in which case the notifying party may
regard the other party as in default under this Agreement; (iii) a
party hereto is in breach of, or default under, this Agreement, and
the other party serves a thirty (30) days' written termination notice
to the breaching party. Said notice shall become effective at the end
of such period, unless during said period the breaching party shall
cure such breach or default. In the event of such termination, the
non-breaching party shall have all rights and remedies available at
law or in equity.
7. Insurance. OSL hereby undertakes that immediately following the signing
of this Agreement, a Directors and Officers' insurance policy shall be
procured for any persons listed on the Service Personnel list, as shall
be amended from time to time, in the minimum amount of US$ Five Million
($5,000,000), per incident and per period, and that such insurance policy
shall be maintained effective with respect to each person so insured, for
at least until seven years following the termination of such person's
employment with OSL. OSL shall either execute such undertaking by
procuring such insurance policy on its own account or by ensuring such
coverage as part of a D&O insurance policy obtained by any of its parent
companies.
8. Confidentiality. Each party recognizes that it and its officers,
directors, employees and agents may obtain knowledge of the trade
secrets and other confidential information of the other party which is
valuable, special or unique to the continued business of that party.
Accordingly, each party agrees to hold such information in confidence
and to use its best efforts to ensure that such information is held in
confidence by its officers, directors and employees. Notwithstanding
the foregoing, each party may make such disclosure to outside parties
as may be necessary to comply with applicable governmental laws,
rules, and regulations and judicial orders or if any confidential
information is or was in the public domain or generally available to
the public through no unauthorized act or omission of the disclosing
party. The parties acknowledge that each party's confidential
information represents unique and valuable assets.
9. OSL as Independent Contractor. OSL and its employees shall, for all
purposes of this Agreement, be deemed to be an independent contractor and
not an agent or employee of the OIL and, except as otherwise expressly
provided herein and/or authorized by the Board of Directors of OIL, shall
have no authority to act for or to represent OIL or otherwise to be
deemed an agent of OIL.
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10. Binding Effect; Successors and Assigns; Assignment. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, successors, permitted assigns and legal
representatives. This Agreement shall be for the sole benefit of the
parties to this Agreement and their respective heirs, successors,
permitted assigns and legal representatives. This Agreement may not be
assigned by either party without the prior written consent of the other
party. Any attempted assignment in violation of this Section 10 shall be
null and void.
11. Counterparts; Signatures; Titles and Headings. This Agreement may be
executed in counterparts, each of which shall be deemed an original
agreement, but all of which together shall constitute one and the same
instrument. This Agreement shall be deemed executed and delivered upon
the delivery of original signed copies, or facsimile copies containing
telecopied signatures, to each other party hereto. The headings in this
Agreement are for reference purposes only and shall not in any way affect
the meaning or interpretation of this Agreement.
12. Governing Law; Jurisdiction and Venue. This Agreement shall be governed
by and construed in accordance with the laws of the State of Israel,
without reference to choice of law principles thereof, and the parties
agree to exclusively submit to the jurisdiction and venue of Israel and
the courts of Tel-Aviv-Jaffa, Israel.
Each Party hereto waives any claim of consequential damages from the
other unless: (a) the foreseeability of such damages at the time of the
contract; and (b) the amount of such damages are proven by clear and
convincing evidence.
Each party hereto hereby waives any claim to punitive, multiplied or
exemplary damages from the other.
It is hereby clarified that in case the first paragraph of this Section
12 is found, by a court of competent jurisdiction, to be unenforceable or
otherwise invalid, each party hereto waives its right to trial of any
issue by jury.
13. Warranty. This Services Agreement is entered into on an "AS IS" basis
without a warranty of any kind. All express or implied representations
and/or warranty, including without limitation any implied warranty,
are hereby excluded. The entire risk as to the quality of Services is
borne by OIL.
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14. Severability. If any provision of this Agreement shall be determined by
any court of competent jurisdiction (or any other agreed-upon dispute
resolving body) to be unenforceable or otherwise invalid as written, the
same shall be enforced and validated to the fullest extent permitted by
law. All provisions of this Agreement are severable, and the
unenforceability or invalidity of any single provision hereof shall not
affect the remaining provisions.
15. Notices. Except as otherwise provided herein, all notices shall be in
writing and shall be effective upon receipt, if delivered personally or
if mailed by overnight courier, postage prepaid, or upon generation of a
confirmation if sent by facsimile (provided that such transmission is
followed by mailing of a conforming copy) to the parties at their
addresses set forth in the first paragraph of this Agreement or such
other address as subsequently may be specified in writing by a party to
the other parties.
16. No Strict Construction; Interpretation. The parties hereto acknowledge
that this Agreement has been prepared jointly by the parties hereto and
their respective legal counsel, and shall not be strictly construed
against any party as a result of the party drafting any given provision
hereof. Unless otherwise indicated to the contrary herein by the context
or use thereof, (a) the words "herein," "hereto," "hereof," and words of
similar import refer to this Agreement as a whole and not to any
particular Section, subsection or paragraph hereof, (b) words importing
the masculine gender shall include the feminine and neutral genders and
vice versa, and (c) words importing the singular shall include the plural
and vice versa.
17. Entire Agreement; Modification and Waiver. Except for the agreements
specifically referenced in or contemplated by this Agreement, this
Agreement constitutes the entire agreement between the parties with
respect to the matters covered hereby and supersedes all previous
written, oral or implied understandings between them with respect to
such matters. This Agreement may be amended or modified only by a
writing signed by the party against whom enforcement of such amendment
or modification is sought. Any of the terms or conditions of this
Agreement may be waived at any time by the party or parties entitled
to the benefit thereof, but only by a writing signed by the party or
parties waiving such terms or conditions. No waiver of any provisions
of this Agreement or of any rights or benefits arising hereunder shall
be deemed to constitute or shall constitute a waiver of any other
provisions of this Agreement (whether or not similar) nor shall such
waiver constitute a continuing waiver unless otherwise expressly
provided in writing.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the day first above written.
ORMAT INDUSTRIES LTD
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board
ORMAT SYSTEMS LTD
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: V.P. Contract Administrator
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SCHEDULE 2
SERVICES PROVIDED BY OSL TO OIL:
OSL will provide corporate, financial, secretarial and administrative services
to OIL which shall encompass, among other, the following detailed services:
Corporate executive and statutory services providing personnel to fulfill the
statutory positions required by law for public entities, all bookkeeping and
accounting services, public and investment relations services, management of
assets, obligations, liabilities, corporate reporting requirements, any
administrative functions and services required to maintain a public entity.
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SCHEDULE 3.3
SERVICE PERSONNEL:
Xxxxxx X. Xxxxxxxx - Chairman of the Board of Directors
Xxxxxxx Xxxxxxxx - Managing Director and Director
Xxxx Xxxxxx - Chief Financial Officer
Xxxx Xxxxxx - Corporate Secretary
Xxxx Xxxxx - Controller Xxxx Xxxx - Head Bookkeeper
Accounting, treasury and secretarial staff - as required
