Exhibit 10.38
FORM OF
AMENDED AND RESTATED
SUPPLEMENTAL AGREEMENT NO. 1
to the
ADVISORY AGREEMENT
This Amended and Restated Supplemental Agreement No. 1 (this
"Supplemental Agreement") is dated as of August 2, 2000 by and among ChipPAC,
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Inc., a Delaware corporation ("ChipPAC"), ChipPAC Limited, a corporation
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incorporated under the laws of the Territory of the British Virgin Islands,
ChipPAC International Company Limited, a corporation incorporated under the laws
of the Territory of the British Virgin Islands (collectively, the "Companies")
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and Xxxx Capital, Inc. ("Bain") (collectively, the "Parties"), and hereby amends
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and supplements the Advisory Agreement (the "Advisory Agreement") entered into
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as of August 5, 1999 by and among the Parties.
WHEREAS, pursuant to a Registration Statement on Form S-1 (Registration
No. 333-39428) filed with the Securities and Exchange Commission on June 16,
2000, and as amended from time to time (the "Registration Statement"), ChipPAC
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is preparing an initial public offering (the "Offering");
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WHEREAS, the Parties have agreed that upon completion of the Offering,
ChipPAC will no longer need the services provided to it by Bain under the
Advisory Agreement, and Bain will no longer need to provide such services; and
WHEREAS, the Parties have previously entered into the Supplemental
Agreement No. 1, entered into as of August 2, 2000 ("Supplemental Agreement
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No. 1") and desire to amend and restate Supplemental Agreement No. 1 in its
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entirety.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other goods and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereto, intending to
be legally bound, hereby agree to amend and restate Supplemental Agreement No. 1
in its entirety as follows:
1. Early Termination. The Advisory Agreement shall terminate
immediately upon the satisfaction or written waiver of all of the conditions
listed in Section 2 below; provided however, that any obligations of the
Companies owed under Sections 3 or 4 of the Advisory Agreement arising prior to
the termination shall survive termination and Sections 6, 7, 8 and 12 of the
Advisory Agreement shall survive termination.
2. Conditions. The Advisory Agreement shall terminate pursuant to
Section 1 above, upon the satisfaction or written waiver of all of the
following:
a. Offering. The Offering shall have been consummated.
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b. Payment of Termination Fee. In consideration of the termination
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of the Advisory Agreement, the Companies shall have delivered to Bain:
(i) by wire transfer of immediately available funds to an account or
accounts as Bain shall designate, an amount equal to $1.8 million
(the "Cash Payment"); and
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(ii) a number of shares of ChipPAC Class A common stock (the
"Shares") equal to $2.2 million divided by the price per share of
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the Class A common stock paid by the public in the Offering (the
Cash Payment and the Shares are collectively referred to herein
as the "Termination Fee").
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c. Payment of All Fees. ChipPAC shall have delivered to Bain by
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wire transfer of immediately available funds to an account or accounts as
Bain shall designate, or by any other method or form of payment as Bain
approves, all and any amounts owed under Sections 3 or 4 of the Advisory
Agreement as of and up until the date of the termination of the Advisory
Agreement pursuant to Section 1 above.
d. Termination of Supplemental Agreement with SXI Group LLC. The
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Advisory Agreement with SXI Group LLC shall have been terminated on
terms identical to those contained in this Supplemental Agreement.
3. Investment Representations of Bain. Bain understands that the Shares
have not been registered under the Securities Act of 1933, as amended (the
"Securities Act"). Bain also understands that the Shares are being offered and
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sold pursuant to an exemption from registration contained in the Securities Act
based in part upon Xxxx'x representations contained in this Supplemental
Agreement. Bain hereby represents and warrants as follows:
x. Xxxx Bears Economic Risk. Bain has substantial experience in
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evaluating and investing in private placement transactions of securities in
companies similar to ChipPAC so that it is capable of evaluating the merits
and risks of its investment in ChipPAC and has the capacity to protect its
own interests. Bain must bear the economic risk of this investment
indefinitely unless the Shares are registered pursuant to the Securities
Act, or an exemption from registration is available.
b. Acquisition for Own Account. Bain is acquiring the Shares for
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Xxxx'x own account for investment only, and not with a view towards
their distribution in violation of the Securities Act.
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x. Xxxx Can Protect Its Interest. Bain represents that by reason of
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its, or of its management's, business or financial experience, Bain has the
capacity to protect its own interests in connection with the transactions
contemplated in this Supplemental Agreement.
d. Accredited Investor. Bain represents that it is an accredited
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investor within the meaning of Regulation D under the Securities Act.
e. ChipPAC Information. Bain has received and read the Registration
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Statement and has had an opportunity to discuss ChipPAC's business,
management and financial affairs with directors, officers and management of
ChipPAC and has had the opportunity to review ChipPAC's operations and
facilities. Bain has also had the opportunity to ask questions of and
receive answers from, ChipPAC and its management regarding the terms and
conditions of this investment.
4. 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:
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ChipPAC, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
ChipPAC Limited
Road Town
Tortola, British Virgin Islands
Facsimile: (000) 000-0000
ChipPAC Operating Limited
(Name to be changed to
ChipPAC International Company Limited)
Road Town
Tortola, British Virgin Islands
Facsimile: (000) 000-0000
To Bain:
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Xxxx Capital II, Inc.
Xxx Xxxxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
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Attention: Xxxxx Xxxxxxx
Xxxxxxxx Xxxx
and
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c/o Bain Capital, Inc.
Two Xxxxxx Xxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
5. Assignment. None of the Companies may assign any obligations hereunder
to any other party without the prior written consent of Bain (which consent
shall not be unreasonably withheld), and Bain may not assign any obligations
hereunder to any other party without the prior written consent of the Companies
(which consent shall not be unreasonably withheld); provided that Bain may,
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without consent of the Companies, assign its rights and obligations under this
Supplemental Agreement to any of its affiliates (but only if such affiliate is a
person or entity (excluding any Bain portfolio companies) controlled by Bain, or
in the case of an affiliate which is a partnership, only if Bain is the ultimate
general partner of such partnership) or to Citicorp Venture Capital Ltd. The
assignor shall remain liable for the performance of any assignee.
6. Successors. This Supplemental Agreement and all the obligations and
benefits hereunder shall inure to the successors and assigns of the parties.
7. Counterparts. This Supplemental 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.
8. 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 Supplemental Agreement and supersede all previous
communications, either oral or written, representations or warranties of any
kind whatsoever, except as expressly set forth herein. No modifications of this
Supplemental Agreement nor waiver of the terms or conditions thereof shall be
binding upon either party unless approved in writing by any authorized
representative of such party. 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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9. Lapse. This Supplemental Agreement shall terminate and be of no force
and effect if the conditions set forth in Section 2 have not been satisfied
prior to December 31, 2000.
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IN WITNESS WHEREOF, each of the Parties have caused this Supplemental
Agreement to be executed on its behalf as an instrument under seal as of the
date first above written by its officer or representative thereunto duly
authorized.
CHIPPAC, INC.
By__________________________________
Name (Please print):
Title:
CHIPPAC LIMITED
By______________________________
Name (Please print):
Title:
CHIPPAC INTERNATIONAL COMPANY
LIMITED
By__________________________________
Name (Please print):
Title:
XXXX CAPITAL, INC.
By__________________________________
Name (Please print):
Title:
S-1
