Exhibit 99.1(c)
APPENDIX C
THIS
MANAGEMENT SERVICES AGREEMENT (this “Agreement”) is made and entered into
this [—] day of [September], 2009, by and between Retalix Ltd., an Israeli company (the
“Company”) and the persons listed on the signature page hereto (the
“Service Providers”).
W I T N E S S E T H:
WHEREAS,
concurrently with the execution of this Agreement, the Service Providers and the Company
are entering into that certain Share Purchase Agreement, providing for the purchase by the
Service Providers of Ordinary Shares constituting 20% of the Company’s issued and
outstanding share capital, as well as the grant of certain warrants to purchase Ordinary
Shares from the Company (the “PIPE Agreement”); and
WHEREAS,
the Company wishes to enter into this Agreement for the provision of management services
by the Service Providers and the Service Providers agree to provide such services, all
subject to the terms and conditions set forth herein, effective as of and from the closing
of the PIPE Agreement (the “Closing”).
NOW
THEREFORE, in consideration of the mutual agreements, covenants and other promises set
forth herein, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged and accepted, the parties hereby agree as follows:
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1.1. |
Management
Services. Subject to the terms and conditions set forth herein,
the Service Providers shall provide or cause to be provided to the
Company, such management services as set forth on Schedule I attached
hereto (the “Management Services”). The Service
Providers shall devote an aggregate amount of ▇▇▇ (▇▇▇▇▇ ▇▇▇▇▇▇▇)
hours per each 12-month period during the term of this Agreement for
the performance of the Management Services. The allocation of such
hours among the Service Providers shall be determined by the Service
Providers in their discretion. In the event the Service Provider is a
corporate entity or trust, such Service provider undertakes that the
Management Services shall be performed personally by the applicable
Alpha Promoter (as defined below). |
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1.2. |
Company
Facilities and Staff. The Company shall provide and/or make
available to the Service Providers, at reasonable times and upon
reasonable notice, such office facilities, equipment, books and
records, and shall allow Service Providers to consult and discuss
with Company’s management and other staff, all as shall be
required by the Service Providers for rendering the Management
Services hereunder. |
| 2. |
Relationship
of Parties. |
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2.1. |
The
Management Services hereunder shall be performed by Service Providers as
independent contractors and no employer-employee relationship will
exist between the Service Providers and the Company. |
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2.2. |
Each
Service Provider hereby undertakes not to file any claim against the
Company concerning employee-employer relationships between such
Service Provider and the Company, and if such Service Provider will
do so, or in a case that the Company shall incur any other expenses
and/or liabilities and/or losses deriving from an adjudication that
there is an employee-employer relationship between the Company and
such Service Provider during the term of this Agreement – such
Service Provider shall indemnify the Company for any such expenses
and/or liabilities and/or losses in connection with such a claim,
including reasonable attorneys fees (taking into account the
provisions of Section 2.3, it being understood that the Company shall
not be entitled to indemnity for expenses and/or liabilities and/or
losses refunded pursuant to Section 2.3). In no event shall any
Service Provider be liable for indemnification in excess of amounts
actually received by such Service Provider as Management Fees
pursuant to this Agreement. |
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2.3. |
If,
for any reason whatsoever a competent authority, including a judicial body,
determines that notwithstanding the parties’ agreement as set
forth in this Agreement, any Service Provider is the Company’s
employee and thus entitled to the benefits of an employee, the
following provisions shall apply: |
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2.3.1. |
In
lieu of the consideration that was paid to such Service Provider from the
commencement of this Agreement, such Service Provider shall be deemed
only to be entitled to gross consideration equal to 70% of the
consideration actually paid to such Service Provider under this
Agreement (the “Adjusted Consideration”) from the date of the
commencement of this Agreement. To the Adjusted Consideration shall
be added the “Tosefet Yoker” which has been paid in Israel
from the date of the commencement of this Agreement. |
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2.3.2. |
Such
Service Provider undertake to immediately refund to the Company any amount
paid under this Agreement from the commencement date of this
Agreement in excess of the Adjusted Consideration (as increased by
the Tosefet Yoker), and except for such amounts received by Service
Provider as reimbursement of expenses under Section 3.2 hereof. |
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2.4. |
Nothing
contained in this Agreement should be construed to require the Service
Providers or their respective affiliates to offer to the Company or
any of its affiliates any business or investment opportunities, or to
preclude any of them from pursuing other business or investment
opportunities (without derogating from any obligation under
applicable law applying to any Service Provider as a director of the
Company). |
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3.1. |
Management
Fee. The Service Providers shall be entitled to receive an annual
management fee in the aggregate amount of US $240,000 (the “Management
Fee”) (plus VAT, if applicable). The Management Fee shall be
payable by the Company in arrears for each fiscal quarter commencing
from January 1, 2010, within 10 days of the end of each fiscal
quarters, except that with respect to the year 2009, the Management
Fee, if any, shall be pro rated based on the actual number of days
that have elapsed from the Closing Date (as defined in the PIPE
Agreement) until December 31, 2009. The Management Fee shall be paid
by the Company to such bank account(s) as designated in writing by
the Service Providers, in US dollars, or, at the Service Providers’ election,
in NIS, based on the representative US Dollar/NIS exchange rate known
at the applicable date of payment, and, if applicable, upon receipt
by the Company of an invoice from the Service Providers. The
allocation of the Management Fee among the Service Providers shall be
as instructed by them in writing to the Company, and in the absence
of instructions, as set forth in Schedule II. |
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3.2. |
The
Company shall reimburse the Service Providers for reasonable out-of-pocket
expenses incurred by Service Providers in connection with the
provision of the Management Services hereunder (which may include
flight and lodging expenses in accordance with the Company’s
policy for executive officers as in effect from time to time), within
ten (10) days of its receipt of the relevant documentation reflecting
such expenses. For the purpose of billing the Service Providers’ expenses,
the Service Providers shall be required to maintain records of such
expenses and invoice the Company on a periodic basis. |
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3.3. |
The
Company shall be entitled to withhold from payments hereunder any taxes due
under the applicable law. |
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3.4. |
For
the avoidance of doubt, the above shall not be deemed to include or
constitute remuneration or reimbursement of expenses, if any, in a
Service Provider’s capacity as a director of the Company. |
| 4. |
Confidentiality,
Intellectual PropertyRights and Non-Competition. |
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4.1. |
Confidentiality.
Each Service Provider acknowledges that he may receive from the
Company or its agents or representatives, directly or indirectly,
non-public, confidential or proprietary information (including such
information received by the Company from third parties on a
confidentiality basis) (“Confidential Information”),
and agrees that such information is confidential, and further agrees
that, for so long as such information is not public, it will neither
use such information for any purpose other than in connection with
this Agreement and the performance of the Management Services, nor
will it disseminate such information to any person, other than (i) to any
affiliates, partners, shareholders, representatives and advisors of
such Service Provider who have a need to know such information for
purposes of performing the Management Services hereunder, or (ii)
subject to applicable law, in connection with Service Provider’s
periodic reports to any affiliates, partners, shareholders,
representatives and advisors thereof in order to enable them to
monitor and evaluate their direct and indirect investment in the
Company, provided that such persons to whom the Service Provider has
given access to the Company’s confidential information pursuant
to (i) and (ii) above are bound by similar confidentiality
obligations to those set forth herein, or (iii) as otherwise may be
required by a court of competent jurisdiction or other governmental
authority or under any applicable law. Confidential Information shall
not include any information that (i) is or subsequently becomes publicly
available without the Service Provider’s breach of its
confidentiality obligations toward the Company, (ii) was known to the
Service Provider prior to disclosure of such information by the
Company, (iii) became known to the Service Provider from a source
other than Company, other than by the breach of an obligation of
confidentiality owed to the Company, or (iv) is independently
developed by the Service Provider. |
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4.2. |
Ownership
of Company Work Product. The term “Company Work Product” means
any information, trade secrets, inventions, mask works, ideas,
processes, formulas, source and object codes, data, programs, other works
of authorship, know-how, improvements, discoveries, developments,
designs and techniques, information regarding plans for research,
development, new products, marketing and selling, business plans,
budgets and unpublished financial statements, licenses, prices and
costs, suppliers and customers, that is solely or jointly conceived,
made, reduced to practice, or learned by such Service Provider
directly as a result of the Management Services provided to the
Company. Each Service Provider assigns to the Company all right,
title and interest worldwide in and to the Company Work Product and
all applicable intellectual property rights related to the Company
Work Product. |
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4.3. |
Non-Compete
Undertaking. During the term of this Agreement and for a period
of twelve (12) months thereafter, each Service Provider hereby agrees not
to, and not to cause affiliates controlled by him to, directly or
indirectly, engage, promote, establish, market, become or be
financially interested in, consult with or for, or associate in a
business relationship with, or in any manner become involved, in any
other person, business (or any component thereof), occupation, work,
operation or any other activity, anywhere in the world, which engages
or intends to engage in the developing, producing, offering,
distributing, licensing, selling or supporting of products or services
that directly competes with the business (or any component thereof),
products and services of the Company and any of its affiliates, as
currently conducted and as conducted by the Company from time to time
until the termination of this Agreement (the “Company’s
Field”) and provided that the Company’s Field
represents a principal activity of such business, occupation, work,
operation or any other activity. Each Service Provider acknowledges
that the consideration under this Agreement is paid in consideration,
in part, for the obligations and undertakings under this Section 4.3
and that in light of the nature of the transactions contemplated hereunder,
the covenants under this Section 4.3 are reasonable and fair under
the circumstances. |
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The
undertaking under this Section 4.3 shall exclude: |
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4.3.1. |
holding
any securities or having any other interest in any person, where the
activity of such person is to make, select, hold or manage
investments, using funds provided by multiple investors (such as
investment funds, investment managers, and other similar vehicles),
in businesses, even if the businesses in which such person invests
are in the Company’s Field (provided that the Service Provider
or its affiliates are not involved in the management or decision
making of such person or in the businesses in which such person
invests); |
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4.3.2. |
acquiring
or holding up to 25% of the voting rights of any business, company or
group which is engaged or interested in the Company’s Field, if
the Company’s Field does not represent a principal activity of
such business, company or group (for purposes of this Section 4, a
“principal” activity shall be an activity that is
responsible for over 15% percent of the aggregate annual turnover of
such business, company or group); and |
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4.3.3. |
holding
of securities which constitute less than 5% of the share capital of any
business in the Company’s Field which securities are registered
for trading on a stock exchange or an automated quotation system. |
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5.1. |
Initial
Term. This Agreement shall become effective as of and subject to
the Closing and shall continue for an initial term of five (5) years
thereafter (the “Initial Term”), unless earlier
terminated in accordance with its terms. |
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5.2.1. |
The
Service Providers may terminate this Agreement, for any reason, at any time
after the second anniversary of the Closing, upon 30-days’ prior
written notice tothe Company. |
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5.2.2. |
The
Company shall be entitled to terminate this Agreement with respect to any
Service Provider (i) upon the occurrence of a Change in Control (as
defined below) of the Company occurring after the second anniversary
of the Closing upon a 30-days prior written notice tothe
Service Providers, (ii) upon (a) conviction of a criminal felony
which the Audit Committee of the Board of Directors reasonably
believes had or will have a material detrimental effect on the Company’s
reputation or business, (b) a breach of trust or (c) causing grave
injury to the Company; by such Service Provider, in each case, as
determined by the Company’s Audit Committee of the Board of
Directors after giving such Service Provider an opportunity to appear
before such committee and present his case, and/or (iii) upon 30-days’ prior
written notice tothe Service Provider, in the event of continued material breach
of such Service Provider’s undertakings as set forth in this
Agreement after there has been delivered to such Service Provide a
written demand for performance from the Company describing the
alleged breach and a reasonable cure period has passed, and/or (v) if
all of the Service Providers are for any reason unable to provide the
Management Services pursuant to this Agreement. For purposes of this
Section 5.1, “Change in Control” shall mean (i) any
“person” (as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)), other than the Service Providers, Ronex Holdings,
Limited Partnership or their respective affiliates and Permitted
Transferees, who becomes the “beneficial owner” (as defined
in Rule 13d-3 of the Exchange Act), directly or indirectly, of
securities of the Company representing fifty percent (50%) or more of
the total voting power represented by the Company’s then
outstanding voting securities; or (ii) the consummation of the sale
or disposition by the Company of all or substantially all of the
Company’s assets; or (iii) the consummation of a merger or
consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity or its parent) at least
fifty percent (50%) of the total voting power represented by the
voting securities of the Company or such surviving entity or its
parent outstanding immediately after such merger or consolidation. |
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5.2.3. |
Renewal.
This Agreement shall automatically be renewed at the end of the
Initial Term for additional successive terms of one (1) year each at
a time thereafter, unless terminated, for any reason, by any party,
by thirty (30) days advance written notice to the other party prior
to the expiration of the Initial Term or any renewal term thereof
(and subject to the termination provisions under Section 5.2.2
above). |
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5.3. |
Effect
of Termination. Upon termination of this Agreement, the Service
Providers shall be entitled to such Management Fee and other payments
incurred by it up to the date of such termination. In the event of
termination of this Agreement, there shall be no liability or
obligation on the part of any Service Provider or the Company, or
their respective affiliates, officers, directors, employees, agents,
representatives and permitted successors and assigns, except that the
provisions of Section 6 and this Section 5.3 shall remain in full force
and effect and survive any termination of this Agreement and except
to the extent that such termination results from a breach of this
Agreement. |
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6.1. |
Entire
Agreement. This Agreement and the exhibits and schedules attached
hereto, constitute the full and entire understanding and agreement
between the parties with respect to the subject matters hereof and
thereof, and supersedes any prior understandings, agreements, or
representations by or among the parties, written or oral, to the
extent they relate in any way to the subject matter hereof. |
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6.2. |
Amendment;
Waiver. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the Company and a
majority of the Service Providers. Any amendment or waiver effected
in accordance with this Section shall be binding upon all parties of
this Agreement and their respective successors and assignees. |
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6.3. |
Personal
Service Agreement; Several Agreement. Notwithstanding anything in
this Agreement to the contrary, the Service Providers hereby acknowledge that
this Agreement is a personal services agreement and the Management
Services provided hereunder cannot be performed but for by ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ and/or ▇▇▇▇▇
▇▇▇▇▇ (the “Alpha Promoters”). Subject to the above,
and other than the undertaking pursuant to Section 1.1 (which shall
be joint and not several), any and all obligations, liabilities,
indemnities and undertakings by the Services Providers hereunder
shall be several and not joint, to be borne by each of them according
to the portion of the Management Fee actually received by each such
Service Provider. |
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6.4. |
Assignment.
Neither this Agreement, nor any rights, interests or obligations
under this Agreement may be assigned or transferred, in whole or in
part, by operation of law or otherwise by any party hereto, without
the prior consent in writing of each the other parties hereto, and
any such assignment without such prior written consent shall be null
and void, except that, subject to Section6.3, any Service Provider
shall be entitled to assign the rights, interests and obligations
hereunder (or any part thereof) to any of PermittedTransferee (as defined below).
Subject to the foregoing, this Agreement shall inure to the benefit
of, and be binding upon, and be enforceable by, the parties hereto
and their respective successors, assigns, heirs, executors, and
administrators. “Permitted Transferee” shall mean:
(a) the controlling holder of any Service Provider (in case of a
corporate entity) or the beneficiary (in case of trust) (b) any
affiliate of any Service Provider or the persons indicated in (a)
above; (c) as to a trust, the beneficiary or beneficiaries of such
trust; provided that, in each case, the Permitted Transferee has
agreed in writing to assume and be bound by the Service Provider’s
obligations hereunder as if it were an original party hereto. For the
purpose of this Section “affiliate(s)” of any person shall
mean another person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common
control with, such first person; and “control” (and words
of similar import) shall mean ownership (direct or indirect) of more
than 50% of the shares of the subject person entitled to vote in the
election of directors (or, in the case of a person that is not a
corporation, for the election of the corresponding managing
authority). |
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6.5. |
Notices.
All notices and other communications hereunder shall be in writing
and shall be shall be emailed, faxed or mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by
messenger, addressed to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice): |
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6.5.1. |
if
to the Service Providers, to: |
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▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇ |
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▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ |
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Telephone No.: |
(972)-(3)-7371111 |
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Facsimile No.: |
(972)-(3)-7371110 |
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Email: |
▇▇▇▇@▇▇▇▇▇.▇▇▇ |
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▇▇. ▇▇▇ ▇▇▇▇▇▇ |
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▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ |
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Telephone No.: |
(972)-(3)-6352724 |
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Email: |
▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ |
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with
a mandatory copy to (which shall not constitute notice): |
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Meitar Liquornik Geva & Leshem ▇▇▇▇▇▇▇▇▇ |
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▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, Israel |
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Attention: |
▇▇▇ ▇▇▇▇, Advocate |
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▇▇▇▇▇ ▇▇▇▇▇, Advocate |
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Telephone No.: |
(972)-(3)-610-3100 |
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Facsimile No.: |
(972)-(3)-6103-111 |
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Email: |
▇▇▇@▇▇▇▇▇▇.▇▇▇ |
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▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ |
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6.5.2. |
if
to Company, to: |
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Retalix Ltd. |
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▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇'▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ |
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Attention: |
Chief Financial Officer |
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Telephone No.: |
(972)-(9)-7766677 |
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Facsimile No.: |
(972)-(9)-744-4756 |
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Email: |
▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ |
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Any
notice sent in accordance with this Section 6.5 shall be effective (i) if mailed, seven
(7) business days after mailing, (ii) if by airmail two (2) business days after delivery
to the courier service, (iii) if sent by messenger, upon delivery, and (iii) if sent via
email or facsimile, upon transmission and electronic confirmation of receipt (or recipient’s
electronic “read receipt” in case of email) or (if transmitted and received on
a non-business day) on the first business day following transmission and electronic
confirmation of receipt (or recipient’s electronic “read receipt” in case
of email (provided, however, that any notice of change of address shall only be valid
upon receipt). ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇ are hereby designated as the
representatives of all the Service Providers for the receipt of notices under this
Agreement, until such time as a majority of the Service Providers shall otherwise notify
the Company. |
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6.6. |
Governing
Law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of Israel,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof. Each of the parties hereto
irrevocably consents to the exclusive jurisdiction and venue of any
competent court located in Tel-Aviv-Jaffa, Israel in connection with
any matter based upon or arising out of this Agreement or the matters
contemplated herein, agrees that process may be served upon them in any
manner authorized by the laws of the State of Israel for such persons
and waives and covenants not to assert or plead any objection which
they might otherwise have to such jurisdiction and such processes. |
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6.7. |
Interpretation.
The words “include,” “includes” and “including” when
used herein shall be deemed in each case to be followed by the words
“without limitation”. The words “herein,” “hereof,” “hereto” and
“hereunder” and words of similar import, when used in this
Agreement, shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. The word “affiliate(s)” (and
words of similar import) shall mean as set forth in Rule 405
promulgated under the Securities Act of 1933, as amended, and with
respect to any natural person, also, (i) grandparents, parents,
siblings, lineal descendant of such person or their spouse (including
step and adopted children), and any spouse of such person or any of
the foregoing, (ii) any trust established for the benefit of such natural
person or any affiliate of such natural person, or (iii) any executor
or administrator of the estate of such natural person. The headings
contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement. |
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6.8. |
Severability.
In the event that any provision of this Agreement or the application
thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement
will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties
further agree to replace such void or unenforceable provision of this
Agreement with a valid and enforceable provision that will achieve,
to the extent possible, the economic, business and other purposes of
such void or unenforceable provision. |
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6.9. |
OtherRemedies.
Any and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy
conferred hereby, or by law or equity upon such party, and the exercise
by a party of any one remedy will not preclude the exercise of any
other remedy. |
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6.10. |
Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and enforceable against the parties
actually executing such counterpart, and all of which together shall
be considered one and the same agreement, it being understood that
all parties need not sign the same counterpart. The exchange of an
executed Agreement (in counterparts or otherwise) by facsimile
transmission or by electronic delivery in .pdf format or the like
shall be sufficient to bind the parties to the terms and conditions
of this Agreement, as an original. |
– Signature Page Follows –
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IN
WITNESS WHEREOF, the parties hereto have caused this Management Services Agreement to
be duly executed as of the date first written above.
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IN
WITNESS WHEREOF, the parties hereto have caused this Management Services Agreement to
be duly executed as of the date first written above.
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SERVICE PROVIDERS:
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇
By: ▇▇▇▇▇▇▇ ▇▇▇▇ |
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Name: ▇▇▇▇ ▇▇▇▇▇
By: ▇▇▇▇ ▇▇▇▇▇ |
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——————————————
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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Name: ▇▇▇ ▇▇▇▇▇▇
By: ▇▇▇ ▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇ ▇▇▇▇▇ AND M.R.S.G. (1999) LTD.
By: ▇▇▇▇▇ ▇▇▇▇▇ |
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SCHEDULE I
MANAGEMENT SERVICES
The Management Services to be
provided by the Service Providers hereunder shall be comprised of the following services,
as may be required from time to time:
| 1. |
general executive management services, including in the capacity of director(s)
and/or chairman of the Board of Directors position, but excluding any officer,
senior management or similar employee like roles; |
| 2. |
advice and assistance concerning long range strategic planning and tactical
planning of the Company; |
| 3. |
advice and assistance concerning the preparation of budgets, forecasts, capital
expenditures plans, disposal plans, and refinancing and recapitalization plans; |
| 4. |
advice and assistance concerning strategy, tactics and approach in the
negotiation of material supply and procurement contracts, material financings,
material merger and acquisition agreements, and material disposal agreements;
and |
| 5. |
advice and assistance in executive compensation planning and stock option and
executive incentive planning, if any. |
C - 12