This Management Agreement (the Agreement), is made as of April 29, 2016, by and among KAMD Holdings, Inc., a Delaware corporation (Parent), KAMD Buyer, Inc., a Delaware corporation (Buyer), KAMD Merger Sub, Inc., a Georgia corporation (Merger Sub, and together with Parent and Buyer, the KAMD Entities) and Kohlberg & Co., L.L.C., a Delaware limited liability company (Kohlberg).
WHEREAS, the KAMD Entities have been formed for the purpose of acquiring (the Acquisition) Amendia, Inc., a Georgia corporation (Amendia or the Company), all on the terms and subject to the conditions of that certain Agreement and Plan of Merger, dated as of March 13, 2016 (as amended, restated, supplemented or otherwise modified, the Merger Agreement), by and among Parent, Buyer, Merger Sub and Amendia;
WHEREAS, pursuant to the Merger Agreement, Merger Sub will be merged with and into Amendia with Amendia surviving as a wholly-owned subsidiary of Buyer;
WHEREAS, to enable the KAMD Entities to engage in the Acquisition and related transactions, Kohlberg provided financial and structural advice and analysis as well as assistance with due diligence investigations and negotiations (the Financial Advisory Services); and
WHEREAS, the KAMD Entities desire that Kohlberg provide certain ongoing management and advisory services to the KAMD Entities and Amendia (after the Acquisition), their affiliates and any other subsidiary which Parent may directly or indirectly acquire subsequent to the date hereof (collectively, the Amendia Companies), and Kohlberg is willing to provide such services subject to the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows:
SECTION 1. Services. During the term of this Agreement, Kohlberg shall provide such advisory and management services to the Amendia Companies as the board of directors of Parent shall reasonably request and which shall include, but not be limited to, assistance in (a) developing and implementing corporate and business strategy and planning (including plans to improve operating, marketing and financial performance, budgeting of future corporate investments, identifying, analyzing and executing strategic acquisitions and dispositions, and reorganizational programs); (b) arranging debt and equity financings and refinancings; and (c) establishing, maintaining and evaluating banking, legal and other business relationships. Such services shall be performed at Kohlbergs offices in New York and/or California. Kohlberg will be compensated for such services as described herein in accordance with Section 2 below.
SECTION 2. Compensation.
(a) The Amendia Companies, jointly and severally, will pay to Kohlberg (or such affiliates as it may designate), in consideration of Kohlbergs providing the Financial Advisory Services, an aggregate transaction fee (the Transaction Fee) in the amount of $3,200,000, such fee being payable at the closing of the Acquisition.