Management Services Agreement
EXHIBIT
10.3(a)
Final
Execution Copy
This
Management Services Agreement (this "Agreement") is entered into as
of March 26, 2007, by and among (i) Soda Club Enterprises N.V., on behalf of the
several companies constituting the Soda-Club Group (the “Company”) and (ii) Fortissimo
Capital Fund GP, LP on behalf of the several parallel partnerships for which it
serves as the General Partner, as well as Fortissimo Capital Management Ltd.,
whose principal offices are located at 00 Xxxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxx
Xxxxxx 00000, Israel (“Fortissimo”).
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Whereas,
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the
Company, Fortissimo and certain other investors have entered into a Share
Purchase Agreement dated March 26, 2007 (the “SPA”; all capitalized
terms used and not otherwise defined herein shall have the meanings
ascribed to them in the SPA); and
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Whereas,
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Fortissimo
and its co-investors will purchase, subject to the closing of the
transactions contemplated under the SPA (the “Closing”), a substantial
shareholding position in the Company and they intend to actively
participate in the management of the Company, including by way of election
of members of the Company's Board of Directors (the “Board”);
and
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Whereas,
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the
Company desires to retain management services of Fortissimo, or more
specifically, the management company of Fortissimo, pursuant to the terms
and conditions set forth in this Agreement, and Fortissimo agrees to
provide such services to the Company on such terms and
conditions.
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Now,
Therefore, in consideration of the covenants and conditions hereinafter
set forth, the parties hereby agree as follows:
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1.
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Scope
of Services
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Management
Services
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1.1.
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Fortissimo,
through its employees, officers and directors, will conduct regular
meetings and discussions with members of the Company's management, to
assist and advise them on matters concerning the affairs and business of
the Company and render such other management services and advice as may be
agreed to from time to time by the Company and Fortissimo (the “Management
Services”).
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1.2.
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In
rendering the Management Services hereunder, Fortissimo shall cooperate
with the Company and utilize professional skill and diligence to provide
the expertise required in connection with such services. Fortissimo shall
dedicate as much time as will be reasonably necessary for the proper
performance of the Management
Services.
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Board
Services
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1.3.
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Fortissimo
is entitled, under the terms of the SPA and subject to the Closing, to
elect a majority of the Board, including as the chairman of the Board (the
“Fortissimo
Directors”). The services rendered by the directors and
the Chairman will be referred hereinafter as the “Board
Services”.
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1.4.
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For
the avoidance of doubt, it is clarified that in serving as members of the
Board, the Fortissimo Directors, including the Chairman, shall not be
employees of the Company, nor shall the payment of the Management Fee
(defined below) by the Company create employee-employer relations between
the parties hereto or entitle the Fortissimo Directors to any social
benefits.
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1.5.
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In
providing the Board Services, the Fortissimo Directors shall be subject to
any and all fiduciary and other duties applicable under law upon members
of the board of directors.
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2.
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Compensation
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2.1.
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In
consideration of the performance of the Management Services and the Board
Services hereunder, the Company shall pay to Fortissimo, or an affiliated
entity designated by Fortissimo an annual management services fee equal to
the greater of: (i) two hundred fifty thousand (250,000) Euro or (ii) 4%
of Earnings Before Interest, Taxes, Depreciation and Amortization (“EBITDA”), for so long at
it retains the right to appoint at least two board seats, either alone or
together with the other holders of the A1 Shares purchased pursuant to the
SPA.
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2.2.
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The
Company will reimburse Fortissimo for reasonable documented out-of-pocket
business expenses borne by Fortissimo or any of its employees, directors
or officers in connection with the provision of the Management Services,
in accordance with policies approved by the
Board.
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2.3.
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All
payments under this Agreement shall be made against the issuance of valid
invoices by Fortissimo to the Company. Value Added Tax (“VAT”) pursuant to
applicable law shall be added to all payments
hereunder.
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2.4.
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Except
for VAT, the Management Fee shall be inclusive of all taxes that may be
incurred by the Company and/or Fortissimo Directors and/or Fortissimo in
connection with the payment thereof, and any such taxes shall be borne by
the Fortissimo Directors and/or Fortissimo. Furthermore, the Management
Fee and Additional Fees are the full and final compensation for the
provision of the Management Services and the Board Services and shall be
in lieu of any and all payments that are due to the Fortissimo Directors
in their capacity as members of the Board or any of its committees to
which they are appointed, except for the right to receive options to
purchase ordinary shares of the Company granted to the Company’s directors
from time to time. Notwithstanding the above, Fortissimo Directors who are
not employees, directors or officers of Fortissimo shall be entitled to
such compensation, payments and options as are provided to the other
Company Board members.
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3.
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Term
and Termination
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3.1.
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This
Agreement shall only come into effect at the Closing of the
SPA.
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3.2.
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This
Agreement may be terminated by Board resolution that may be adopted at
such time as the Board includes less than two (2) Fortissimo Directors,
and subject to thirty (30) days prior written notice to Fortissimo. In the
event of termination hereunder, Fortissimo shall be entitled to receive a
pro-rated part of the Management
Fee.
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2
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4.
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Independent
Contractor. Fortissimo
is an independent contractor and is not an agent or employee of, and has
no authority to bind the Company by contract or otherwise. Fortissimo will
perform the Management Services under the general direction of the
Company.
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5.
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Miscellaneous
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5.1.
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Entire
Agreement. This Agreement and the SPA contain the entire agreement
of the parties with relation to the subject matter hereof, and cancel and
supersede all prior and contemporaneous negotiations, correspondence,
understandings and agreements (oral or written) of the parties relating to
such subject matter.
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5.2.
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Amendment. This
Agreement may not be modified or amended except by mutual written
agreement of the parties.
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5.3.
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No Waiver. No
failure, delay of forbearance of either party in exercising any power or
right hereunder shall in any way restrict or diminish such party's rights
and powers under this Agreement, or operate as a waiver of any breach or
nonperformance by either party of any terms of conditions
hereof.
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5.4.
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Assignment.
Except as provided herein, this Agreement shall not be assigned by a party
hereof to a third party without the other party's prior written consent
and any attempt to effect an assignment of this Agreement or any portion
thereof without obtaining such consent shall be null and
void.
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5.5.
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Severability.
In case any one or more of the provisions contained in this Agreement
shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not
affect any other provision hereof and this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had never been
contained herein
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5.6.
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Notices. Any
notice under this Agreement shall be in writing and shall be deemed to
have been duly given for all purposes (a) seven (7) days after it is
mailed by registered mail; (b) upon the transmittal thereof by facsimile;
or (c) upon the manual delivery thereof, to the respective party’s address
set forth in the preamble or to such other address with respect to a party
as such party shall notify the other party in accordance with the
above.
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5.7.
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Counterparts.
This Agreement may be executed in multiple counterparts, including,
without limitation, by facsimile signature, which taken together shall
constitute a single document.
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5.8.
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Governing Law and
Jurisdiction. This Agreement and the transactions contemplated
hereunder shall be governed by and construed in accordance with the laws
of the State of Israel, without giving effect to rules respecting conflict
of law that would cause the laws of any jurisdiction other than the State
of Israel to be applied. The competent courts of Tel Aviv-Jaffa shall have
sole and exclusive jurisdiction to hear and resolve any disputes among the
parties related to this Agreement.
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[Signature
Page to Follow]
3
Signature
Page Of Management Agreement
In
Witness Whereof, the parties have signed this Management Services
Agreement as of the date first set forth above.
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Soda
Club Enterprises N.V.
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By:
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/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
In-House Counsel
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Fortissimo
Capital Fund GP LP.
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By:
Fortissimo Capital (GP) Management Ltd., its general
partner
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By:
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/s/ Xxxxx Xxxxx
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Name:
Xxxxx Xxxxx
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Title:
Director
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