EXHIBIT 10.14
ADVISORY AGREEMENT
This Advisory Agreement (this "Agreement") is made and entered into as of
December 21, 2000 by and between AMI Holdings, Inc. ("Holdings"), AMI Spinco,
Inc. (the "Company" and together with Holdings, the "Companies") and Francisco
Partners GP, LLC ("Advisor"). Capitalized terms used but not defined herein
shall have the meanings assigned to such terms in the Agreement and Plan of
Merger and Recapitalization dated December 5, 2000 (the "Recapitalization
Agreement") by and among Japan Energy Corporation ("JEC"), GA-TEK Inc.,
Holdings, AMI Merger Company, Inc., the Company, TBW LLC ("TBW"), and
FP-McCartney, LLC.
WHEREAS, the Companies desire to retain Advisor and Advisor desires to
perform for the Companies and/or their subsidiaries certain services;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. Term. This Agreement shall be in effect for an initial term of ten
(10) years commencing on the date hereof (the "Term"), and shall be
automatically extended thereafter on a year to year basis unless the Companies
provide or Advisor provides written notice of its or their desire to terminate
this Agreement to the other party 90 days prior to the expiration of the Term
or any extension thereof.
2. Services. Advisor shall perform or cause to be performed such services
for the Companies and/or their subsidiaries as directed by such Company's
board of directors, which may include, without limitation, the following:
(a) executive and management services;
(b) identification, support and analysis of acquisitions and
dispositions by such Company or its subsidiaries;
(c) support and analysis of financing alternatives, including,
without limitation, in connection with acquisitions, capital expenditures and
refinancing of existing indebtedness;
(d) finance functions, including assistance in the preparation of
financial projections, and monitoring of compliance with financing agreements;
(e) human resource functions, including searching and hiring of
executives; and
(f) other services for such Company or its subsidiaries upon which
such Company's board of directors and Advisor agree.
6. Liability. Neither Advisor nor any other Indemnitee (as defined in
Section 7 below) shall be liable to any of the Companies or any of their
subsidiaries or affiliates for any loss, liability, damage or expense arising
out of or in connection with the performance of services contemplated by this
Agreement, unless such loss, liability, damage or expense shall be proven to
result directly from gross negligence, willful misconduct or bad faith on the
part of an Indemnitee acting within the scope of such person's employment or
authority. Advisor makes no representations or warranties, express or implied,
in respect of the services to be provided by Advisor or any of the other
Indemnitees. Except as Advisor may otherwise agree in writing after the date
hereof: (i) Advisor shall have the right to, and shall have no duty (contractual
or otherwise) not to, directly or indirectly: (A) engage in the same or similar
business activities or lines of business as any of the Companies or any of their
subsidiaries, including those competing with any of the Companies or any of
their subsidiaries and (B) do business with any client or customer of any of the
Companies or any of their subsidiaries; (ii) neither Advisor nor any officer,
director, employee, partner, affiliate or associated entity thereof shall be
liable to any of the Companies or any of their subsidiaries or affiliates for
breach of any duty (contractual or otherwise) by reason of any such activities
of or of such person's participation therein; and (iii) in the event that
Advisor acquires knowledge of a potential transaction or matter that may be a
corporate opportunity for the Companies or any of their subsidiaries, on the one
hand, and Advisor, on the other hand, or any other person, Advisor shall have no
duty (contractual or otherwise) to communicate or present such corporate
opportunity to the Companies or any of their subsidiaries and, notwithstanding
any provision of this Agreement to the contrary, shall not be liable to the
Companies or any of their affiliates for breach of any duty (collateral or
otherwise) by reasons of the fact that Advisor directly or indirectly pursues or
acquires such opportunity for itself, directs such opportunity to another
person, or does not present such opportunity to the Companies. In no event will
any of the parties hereto be liable to any other party hereto for any indirect,
special, incidental or consequential damages, including lost profits or savings,
whether or not such damages are foreseeable, or in respect of any liabilities
relating to any third party claims (whether based in contract, tort or
otherwise) other than the Claims (as defined in Section 7 below) relating to the
service to be provided by Advisor hereunder.
7. Indemnity. Each of the Companies and their subsidiaries shall defend,
indemnify and hold harmless each of Advisor, its affiliates, members, partners,
employees and agents (collectively, the "Indemnitees") from and against any and
all loss, liability, damage or expenses arising from any claim by any person
with respect to, or in any way related to, the performance of services
contemplated by this Agreement (including attorneys' fees) (collectively,
"Claims") resulting from any act or omission of any of the Indemnitees, other
than for Claims which shall be proven to be the direct result of gross
negligence, bad faith or willful misconduct by an Indemnitee. Each of the
Companies and their subsidiaries shall defend at its own cost and expense any
and all suits or actions (just or unjust) which may be brought against such
Company, any of its subsidiaries or any of the Indemnitees or in which any of
the Indemnitees may be impleaded with others upon any Claims, or upon any
matter, directly or indirectly, related to or arising out of this Agreement or
the performance hereof by any of the Indemnitees, except that if such damage
shall be proven to be the direct result of gross negligence, bad faith or
willful misconduct by an Indemnitee, then Advisor shall reimburse the Companies
and their subsidiaries for the costs of defense and other costs incurred by the
Companies and their subsidiaries.
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8. Notices. All notices hereunder shall be in writing and shall be
delivered personally or mailed by United States mail, postage prepaid, addressed
to the parties as follows:
To the Companies as appropriate:
AMI Holdings, Inc.
c/o AMI Spinco, Inc.
00000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Chief Executive Officer
Facsimile: 858.521.3777
To Advisor:
Francisco Partners GP, LLC
c/o Francisco Partners, L.P.
Xxx Xxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Facsimile: 415.986.1320
9. Assignment. The Companies may not assign any obligations
hereunder to any other party without the prior written consent of Advisor (which
consent shall not be unreasonably withheld), and Advisor may not assign any
Advisor obligations hereunder to any other party without the prior written
consent of the Companies (which consent shall not be unreasonably withheld);
provided that Advisor may, without consent of the Companies, assign its rights
and obligations under this Agreement to any Permitted Transferee (as such term
is defined in the Shareholders Agreement dated December 21, 2000 among the
Company, FP-McCartney, LLC, the Advisor, JEC and certain other persons named
therein).
10. Successors. This Agreement and all the obligations and benefits
hereunder shall inure to the successors and assigns of the parties.
11. Counterparts. This Agreement may be executed and delivered by
each party hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original and all of which taken together shall
constitute but one and the same agreement.
12. Entire Agreement; Modification; Governing Law. The terms and
conditions hereof constitute the entire agreement between the parties hereto
with respect to the subject matter of this Agreement and supercede all previous
communications, either oral or written, representations or warranties of any
kind whatsoever, except as expressly set forth herein. No modifications of this
Agreement nor waiver of the terms or conditions thereof shall be binding upon
either party unless approved in writing by an authorized representative of such
party. This Agreement may not be amended in a manner materially adverse to the
Company and the Company may not waive any material provision of this Agreement
that is for its benefit unless a corresponding amendment is made to the TBW
Agreement or TBW's consent is
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obtained. All issues concerning this Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of
the State of New York or any other jurisdiction) that would cause the
application of the law of any jurisdiction other than the State of New York.
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IN WITNESS WHEREOF, the parties have executed this Advisory Agreement as
of the date first written above.
AMI HOLDINGS, INC.
By:
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Its:
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AMI SPINCO, INC.
By:
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Its:
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FRANCISCO PARTNERS GP, LLC
By: /s/ Xxxxxxxx Xxx
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Its: Vice President
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