Exhibit 10.6
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("AGREEMENT") dated as of August 15, 2001, as amended
and restated as of September 4, 2003, by and between AMIS Holdings, Inc., a
Delaware corporation, (the "COMPANY") and Xxxxxxxxx Xxxx ("EXECUTIVE") (certain
capitalized terms used herein being defined in Article 7).
WHEREAS, the Board desires to employ Executive in the positions and on the
terms and conditions set forth below, and the Executive desires to accept such
employment;
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties set forth in this Agreement, and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
Article 1
Position; Term of Agreement
Section 1.01 Position. (a) On September 10, 2001 (the "EFFECTIVE DATE"),
Executive shall commence service as Chief Executive Officer of the Company and
as a member of the Board.
(b) As Chief Executive Officer, Executive shall have such duties and
authority, consistent with such position as shall be determined from time to
time by the Board.
(c) During the Employment Term Executive will devote substantially all
of Executive's business time to the performance of Executive's duties hereunder
and will not engage in any other business, profession or occupation for
compensation or otherwise which would conflict with the rendition of such
services either directly or indirectly, without the prior written consent of the
Board; provided that nothing herein shall be deemed to preclude Executive,
subject to the prior written consent of the Board, from serving on any business,
civic or charitable board, as long as such activities do not materially
interfere with the performance of Executive's duties hereunder.
Section 1.02 Term. Executive shall be employed by the Company for a period
commencing on the Effective Date and, subject to earlier termination or
extension as provided herein, ending on December 31, 2005 (the "EMPLOYMENT
TERM").
Article 2
Compensation and Benefits
Section 2.01 Base Salary. Starting on the Effective Date, the Company
shall pay Executive an annual base salary (the "BASE SALARY") at the initial
annual rate of $400,000, payable in equal monthly installments or otherwise in
accordance with the payroll and personnel practices of the Company from time to
time. The Board shall review Executive's Base Salary annually for possible
increases in the sole discretion of the Board.
Section 2.02 Bonus. Subject to Executive's continued employment as
contemplated hereby, with respect to each fiscal year all or part of which is
contained in the Employment Term, Executive shall be eligible for an annual
bonus, with a target bonus opportunity of 50% of Base Salary and a maximum bonus
opportunity of 100% of Base Salary, based on attainment of such goals as the
Board and Executive may mutually determine.
Section 2.03 Employee Benefits. (a) Effective of August 30, 2001 and
during the Employment Term Executive shall be eligible for employee benefits
(including fringe benefits, vacation and health, accident and disability
insurance, and retirement plan participation) no less favorable in the aggregate
than those benefits made available generally to senior executives of the
Company.
Section 2.04 Business and Travel Expenses; Office. (a) Reasonable travel,
entertainment and other business expenses incurred by Executive in the
performance of Executive's duties hereunder shall be reimbursed by the Company
in accordance with Company policies as in effect from time to time.
(b) Executive's principal job location shall be at the
Company's headquarters in Pocatello, Idaho.
Section 2.05 Options. The Company shall grant to Executive (a) as of
September 10, 2001, options to purchase shares of Company common stock in an
amount that on a fully diluted basis would constitute 2.5% of the Company's
common stock as of the date hereof, at an exercise price per share equal to the
fair market value of a share of Company common stock on the date of grant and
(b) on each of the first, second and third anniversaries thereof, additional
options to purchase shares of Company common stock, each grant in an amount that
on a fully diluted basis would constitute .5% of the Company's common stock as
of the date hereof, at an exercise price, in each case, equal to the fair market
value of a share of Company common stock on the date of grant (collectively, the
"OPTIONS").
Subject to termination as provided herein, each such annual grant shall
become 25% vested on the first anniversary of such grant, and the balance shall
vest over the 3-year period following such anniversary at a monthly rate of
2.08%. All the Options shall have a 10 year term, become 100% vested upon a
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Change in Control and shall terminate upon the Company's termination of
Executive's employment for Cause.
Section 2.06 Relocation Expenses. The Company shall reimburse Executive
for all documented relocation expenses reasonably incurred by Executive in
relocating Executive's residence to Pocatello, Idaho or the surrounding area.
Article 3
Certain Termination Benefits
Section 3.01 Certain Events. (a) A "QUALIFYING EVENT" means the
involuntary termination of Executive's employment by the Company, including any
termination as a result of the failure by the Company to cause the Employment
Term under Section 1.02 hereof to be extended past the date set forth therein,
other than (x) for Cause or (y) by reason of Executive's death or Disability.
(b) Each party hereto shall give to the other party 30 days prior
written notice of such party's intent to terminate Executive's employment with
the Company.
Section 3.02 Right to Certain Benefits. In the event of any termination of
employment during the Employment Term, Executive shall be entitled to receive
from the Company either the relevant Severance Benefits to the extent and as
described in Section 3.03 or the relevant Separation Benefits to the extent and
as described in Section 3.04, as the case may be.
Section 3.03 Benefits upon a Qualifying Event. Executive shall be entitled
to the following benefits (the "SEVERANCE BENEFITS") upon a Qualifying Event:
(a) The Company shall pay Executive as soon as practicable a lump sum,
in cash, equal to (i) Executive's earned but unpaid Base Salary and other vested
but unpaid cash entitlements for the period through and including the date of
termination of Executive's employment, including unused earned vacation pay and
unreimbursed documented business expenses (collectively, "ACCRUED
COMPENSATION"). In addition, Executive shall be entitled to any other vested
benefits earned by Executive for the period through and including the date of
termination of Executive's employment under any other employee benefit plans and
arrangements maintained by the Company, in accordance with the terms of such
plans and arrangements, except as modified herein (collectively, "ACCRUED
BENEFITS").
(b) Unless such Qualifying Event is the failure by the Company to cause
the Employment Term under Section 1.02 hereof to be extended past the date set
forth therein (in which case no amounts shall be payable pursuant to this clause
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(b)), the Company shall pay Executive as soon as practicable a lump sum cash
payment in an amount equal to the Base Salary in effect immediately prior to
such Qualifying Event.
(c) The Options shall become 100% vested on the date of such termination
and shall be exercisable by Executive during the 12-month period beginning on
such date. The Company shall pay to Executive on the Payment Date (as defined
below) a lump sum cash payment equal to the amount (the "MINIMUM AMOUNT"), if
any, by which $4.2 million exceeds the sum of:
(i) an amount (which shall not be less than zero) equal to (A) the
aggregate fair market value on the Payment Date of the shares subject to
each unexercised Option (or portion thereof) outstanding as of the Payment
Date minus (B) the aggregate exercise prices of such unexercised Options
(or portions thereof);
(ii) an amount (which shall not be less than zero) equal to (A) the
gross proceeds received by Executive upon the sale prior to the Payment
Date of any shares acquired on exercise of any Option (or portion thereof)
minus (B) the aggregate exercise prices of such exercised Options (or
portions thereof); and
(iii) an amount (which shall not be less than zero) equal to (A) the
fair market value of any shares held by Executive as of the Payment Date
that were acquired pursuant to the exercise of any Option (or portion
thereof) minus (B) the aggregate exercise prices of such exercised Options
(or portions thereof).
For purposes of the foregoing, "PAYMENT DATE" means the fifth day following the
first day Executive is permitted to freely sell shares of the Company following
the date of termination. Immediately following the sale of any shares acquired
on exercise of any Option (or portion thereof), Executive agrees to notify the
Company in writing of the number of shares sold and the gross proceeds of such
sale. Notwithstanding the provisions of any other agreement, to the extent there
are any assets securing the obligations of the Company pursuant to this Section
3.03(c) or Section 3.04(a)(iii) at any time, immediately following the sale of
any shares acquired on exercise of any Option, the Company shall have the right
to, and Executive agrees to take any necessary action to, cause such assets to
be released in an amount equal to (x) the gross proceeds of such sale minus (y)
the aggregate exercise price of the applicable Option, and Executive agrees to
take all actions necessary to effect any such release.
Section 3.04 Separation Payments. (a) Upon termination of employment other
than upon a Qualifying Event, Executive shall be entitled to the benefits set
forth below (the "SEPARATION BENEFITS"):
(i) The Accrued Compensation;
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(ii) The Accrued Benefits; and
(iii) Other than upon the Company's termination of Executive's
employment for Cause, Executive shall be entitled to exercise, during the
12-month period beginning on the date of any such termination of
employment, the then vested portion of the Options; provided, however,
that if Executive's employment terminates by reason of Executive's death
or Disability the Company shall pay to Executive promptly after such date
or event a lump sum cash payment equal to the Minimum Amount.
Article 4
Certain Reimbursement Payments
Section 4.01 In the event that Executive is required to pay Executive's
previous employer any amounts in respect of certain compensation payments paid
by such employer to Executive, the Company shall promptly reimburse Executive,
in an amount not to exceed $200,000, for any such amounts actually repaid by
Executive to Executive's previous Employer.
Article 5
Successors and Assignments
Section 5.01 Successors. Except in the event of a Change in Control, this
Agreement shall not be assignable by the Company without the written consent of
Executive. The Company will require any successor (whether by reason of a Change
in Control, direct or indirect, by purchase, merger, consolidation, or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform the obligations under this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place.
Section 5.02 Assignment by Executive. This Agreement shall inure to the
benefit of and be enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees. If Executive should die or become disabled while any amount is owed
but unpaid to Executive hereunder, all such amounts, unless otherwise provided
herein, shall be paid to Executive's devisee, legatee, legal guardian or other
designee, or if there is no such designee, to Executive's estate. Executive's
rights hereunder shall not otherwise be assignable.
Article 6
Miscellaneous
Section 6.01 Notices. Any notice required to be delivered hereunder shall
be in writing and shall be addressed
if to the Company, to:
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AMIS Holdings, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxx 00000
Fax: 000-000-0000
Attn: Chief Financial Officer
Copies to:
Xxxxx Xxxx & Xxxxxxxx
0000 Xx Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxx X. Xxxxxxxx
if to Executive, to Executive's last known address as reflected on the books and
records of the Company; or, in each case, to such other address as such party
may hereafter specify for the purpose by written notice to the other party
hereto. Any such notice shall be deemed received on the date of receipt by the
recipient thereof if received prior to 5:00 p.m. in the place of receipt and
such day is a business day in the place of receipt. Otherwise, any such notice
shall be deemed not to have been received until the next succeeding business day
in the place of receipt.
Section 6.02 Dispute Resolution. (a) Except as provided in Section 6.15,
each of Executive and the Company shall have the right and option to elect (in
lieu of litigation) to have any dispute or controversy arising under or in
connection with this Agreement settled by arbitration, conducted before a panel
of three arbitrators sitting in a location in Delaware, in accordance with the
rules of the American Arbitration Association then in effect. Executive's
election to arbitrate, as herein provided, and the decision of the arbitrators
in that proceeding, shall be binding on the Company and Executive. Judgment may
be entered on the award of the arbitrator in any court having jurisdiction.
(b) Each party shall pay its own expenses of such arbitration or
litigation and all common expenses of such arbitration or litigation shall be
borne equally by Executive and the Company. Each party to an arbitration or
litigation hereunder shall be responsible for the payment of its own attorneys'
fees.
Section 6.03 Unfunded Agreement. The obligations of the Company under this
Agreement represent an unsecured, unfunded promise to pay benefits to Executive
and/or Executive's beneficiaries, and shall not entitle Executive or such
beneficiaries to a preferential claim to any asset of the Company.
Section 6.04 Non-Exclusivity of Benefits. Unless specifically provided
herein, neither the provisions of this Agreement nor the benefits provided
hereunder shall reduce any amounts otherwise payable, or in any way diminish
Executive's rights as an employee of the Company, whether existing now or
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hereafter, under any compensation and/or benefit plans (qualified or
nonqualified), programs, policies, or practices provided by the Company, for
which Executive may qualify; provided, however, that the Severance Benefits
shall be in lieu of any severance benefits under any such plans, programs,
policies or practices. Vested benefits or other amounts which Executive is
otherwise entitled to receive under any plan, policy, practice, or program of
the Company (i.e., including, but not limited to, vested benefits under any
qualified or nonqualified retirement plan), at or subsequent to the date of
termination of Executive's employment shall be payable in accordance with such
plan, policy, practice, or program except as expressly modified by this
Agreement.
Section 6.05 Employment Status. Nothing herein contained shall interfere
with the Company's right to terminate Executive's employment with the Company at
any time, with or without Cause, subject to the Company's obligation to provide
Severance Benefits or Separation Benefits, if any. Executive shall also have the
right to terminate Executive's employment with the Company at any time without
liability, subject only to the provisions hereof and Executive's obligations
hereunder.
Section 6.06 Mitigation. In no event shall Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to Executive under any of the provisions of this Agreement nor shall the
amount of any payment or benefit hereunder be reduced by any compensation earned
by Executive as a result of employment by another employer.
Section 6.07 Entire Agreement. This Agreement represents the entire
agreement between Executive and the Company and its affiliates with respect to
Executive's employment and/or severance rights, and supersedes all prior
discussions, negotiations, and agreements concerning such rights; provided,
however, that any amounts payable to Executive hereunder shall be reduced by any
amounts paid to Executive as required by any applicable local law in connection
with any termination of Executive's employment.
Section 6.08 Tax Withholding. Notwithstanding anything in this Agreement
to the contrary, the Company shall withhold from any amounts payable under this
Agreement all federal, state, city, or other taxes as are legally required to be
withheld.
Section 6.09 Waiver of Rights. The waiver by either party of a breach of
any provision of this Agreement shall not operate or be construed as a
continuing waiver or as a consent to or waiver of any subsequent breach hereof.
Section 6.10 Severability. In the event any provision of the Agreement
shall be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Agreement, and the Agreement shall
be construed and enforced as if the illegal or invalid provision had not been
included.
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Section 6.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without reference
to principles of conflict of laws.
Section 6.12 Counterparts. This Agreement may be signed in several
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were on the same instrument.
Section 6.13 Indemnification. The Company shall indemnify Executive (and
Executive's legal representatives or other successors) to the fullest extent
permitted by the Certificate of Incorporation and By-Laws of the Company as in
effect at such time or on the Effective Date, and Executive shall be entitled to
the protection of any insurance policies the Company may elect to maintain
generally for the benefit of its directors and officers (and to the extent the
Company maintains such an insurance policy or policies, Executive shall be
covered by such policy or policies, in accordance with its or their terms, to
the maximum extent of the coverage available for any Company officer or
director), against all costs, charges and expenses whatsoever incurred or
sustained by Executive or Executive's legal representatives at the time such
costs, charges and expenses are incurred or sustained, in connection with any
action, suit or proceeding to which Executive (or Executive's legal
representatives or other successors) may be made a party by reason of
Executive's being or having been a director, officer or employee of the Company
or any Subsidiary of the Company, or Executive's serving or having served any
other enterprise as a director, officer, employee or fiduciary at the request of
the Company.
Section 6.14 Nondisclosure, Nonsolicitation, Noncompete, and
Nondisparagement.
(a) (i) Executive shall not (except to the extent required by an order
of a court having competent jurisdiction or under subpoena from an appropriate
government agency) disclose to any third person, whether during or subsequent to
the Executive's employment with the Company, any trade secrets; customer lists;
provider lists; product development and related information; marketing plans and
related information; sales plans and related information; premium or any other
pricing information; operating policies and manuals; research; payment rates;
methodologies; contractual forms; business plans; financial records; or other
financial, commercial, business or technical information related to the Company
or any Subsidiary or Affiliate of the Company unless such information has been
previously disclosed to the public by the Company or has become public knowledge
other than by a breach of this Agreement; provided, however, that this
limitation shall not apply to any such disclosure made while the Executive is
employed by the Company, any Subsidiary or Affiliate of the Company if such
disclosure occurred in connection with the performance of Executive's job as an
employee of the Company, any Subsidiary or Affiliate of the Company;
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(ii) Executive agrees that upon termination of Executive's
employment with the Company for any reason, Executive will return to the
Company immediately all memoranda, books, papers, plans, information,
letters and other data, and all copies thereof or therefrom, in any way
relating to the business of the Company or its Affiliates. Executive
further agrees that Executive will not retain or use for Executive's
account at any time any trade names, trademark or other proprietary
business designation used or owned in connection with the business of the
Company or its Affiliates.
(b) (i) While employed by the Company and for one year after the
termination of the Employment Term, Executive shall not, directly or indirectly,
induce or attempt to induce any employee of the Company, or of any Subsidiary or
any Affiliate of the Company, to be employed or perform services elsewhere;
(ii) While employed by the Company and for one year after the
termination of the Employment Term the Executive shall not, directly or
indirectly, solicit or attempt to solicit the trade of any individual or
entity which, at the time of such solicitation, is a customer of the
Company, or of any Subsidiary or Affiliate of the Company, or which the
Company, or any such Subsidiary or Affiliate is undertaking reasonable
steps to procure as a customer at the time of or immediately preceding
termination of employment; provided, however, that this limitation shall
only apply to any product or service which is in competition with a
product or service of the Company or any such Subsidiary or Affiliate.
(c) Following the termination of the Executive's employment hereunder
with the Company, Executive shall provide assistance to and shall cooperate with
the Company and any Subsidiary or Affiliate of the Company, upon its reasonable
request and at the per diem rate of $1,100, with respect to matters within the
scope of the Executive's duties and responsibilities during employment, provided
that any reasonable out-of-pocket expenses incurred in connection with any
assistance Executive has been requested to provide under this provision for
items including, but not limited to transportation, meals, lodging and
telephone, shall be reimbursed by the Company. The Company agrees and
acknowledges that it shall, to the maximum extent possible under the then
prevailing circumstances, coordinate or cause a Subsidiary or Affiliate to
coordinate any such request with the Executive's other commitments and
responsibilities to minimize the degree to which such request interferes with
such commitments and responsibilities.
(d) Neither party will at any time (whether during or after termination
of Executive's employment with the Company) knowingly make any statement,
written or oral, or take any other action that would disparage or otherwise harm
the other party, its business or reputation or, in the case of the Company, the
reputation of any of its Affiliates or the officers and directors of any of
them.
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Section 6.15 Material Inducement; Specific Performance.
(a) If any provision of Section 6.14 is determined by a court of
competent jurisdiction not to be enforceable in the manner set forth in this
Agreement, the Company and Executive agree that it is the intention of the
parties that such provision should be enforceable to the maximum extent possible
under applicable law and that such court shall reform such provision to make it
enforceable in accordance with the intent of the parties.
(b) Executive acknowledges that a material part of the inducement for
the Company to provide the compensation provided herein is Executive's covenants
set forth in Section 6.14 and that the covenants and obligations of Executive
with respect to nondisclosure and nonsolicitation relate to special, unique and
extraordinary matters and that a violation of any of the terms of such covenants
and obligations will cause the Company irreparable injury for which adequate
remedies are not available at law. Therefore, Executive agrees that, if
Executive shall materially breach any of those covenants during or following
termination of employment, the Company shall be entitled to an injunction,
restraining order or such other equitable relief (without the requirement to
post a bond) restraining Executive from committing any violation of the
covenants and obligations contained in Section 6.14 and the Company shall have
no further obligation to pay Executive any benefits otherwise payable hereunder.
The remedies in the preceding sentence are cumulative and are in addition to any
other rights and remedies the Company may have at law or in equity as an
arbitrator (or court) shall reasonably determine.
Section 6.16 Employee Representation. The Executive expressly represents
and warrants to the Company that the Executive is not a party to any contract or
agreement and is not otherwise obligated in any way, and is not subject to any
rules or regulations, whether governmentally imposed or otherwise, which will or
may restrict in any way the Executive's ability to fully perform the Executive's
duties and responsibilities under this Agreement.
Article 7
Definitions
For purposes of this Agreement, the following terms shall have the
meanings set forth below.
"Accrued Benefits" has the meaning accorded such term in Section 3.03.
"Accrued Compensation" has the meaning accorded such term in Section 3.03.
"Affiliate" and "Associate" have the respective meanings accorded to such
terms in Rule 12b-2 under the Exchange Act.
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"Agreement" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Base Salary" has the meaning accorded such term in Section 2.01.
"Beneficial Ownership." A Person shall be deemed the "Beneficial Owner"
of, and shall be deemed to "beneficially own," securities pursuant to Rule 13d-3
under the Exchange Act.
"Board" means, the Board of Directors of the Company.
"Cause" means the occurrence of any one or more of the following:
(a) Executive's willful and continued failure substantially to perform
the duties of Executive's position as then in effect (other than as a result of
incapacity due to physical or mental illness) which failure is not remedied
within fifteen business days of written notice from the Company;
(b) Executive's gross negligence or willful
malfeasance in the performance of Executive's duties hereunder
as then in effect;
(c) Executive's breach of any of the covenants
continued in Section 6.14; or
(d) Executive's commission of an act constituting
fraud, embezzlement, or any other act constituting a felony.
For purposes of this definition, no act or failure to act shall be deemed
"willful" unless effected by Executive not in good faith and without reasonable
belief that such action or failure to act was in the best interests of the
Company.
"Change in Control" means has the meaning accorded such term in the
Company's 2000 Equity Incentive Plan.
"Code" means the Internal Revenue Code of 1986, as amended.
"Disability" means Long-Term Disability, as such term is defined in the
Disability Plan.
"Disability Plan" means the long-term disability plan (or any successor
disability and/or survivorship plan adopted by the Company) in which Executive
participates, as in effect immediately prior to the relevant event (subject to
changes in coverage levels applicable to all employees generally covered by such
Plan).
"Effective Date" has the meaning accorded such term in Section 1.01.
"Employment Term" has the meaning accorded such term in Section 1.02.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive" has the meaning accorded such term in the introductory
paragraph of this Agreement.
"Options" has the meaning accorded such term in Section 2.06.
"Person" means an individual, corporation, partnership, association, trust
or any other entity or organization.
"Qualifying Event" has the meaning accorded such term in Section 3.01.
"Separation Benefits" has the meaning accorded such term in Section 3.04.
"Severance Benefits" has the meaning accorded such term in Section 3.03.
"Subsidiary" of any Person means any other Person of which securities or
other ownership interests having voting power to elect a majority of the board
of directors or other Persons performing similar functions are at the time
directly or indirectly owned by such Person.
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IN WITNESS WHEREOF, the Company and Executive have executed this
Agreement, to be effective as of the day and year first written above.
AMIS HOLDINGS, INC.
By:
-----------------------------
Name:
Title:
--------------------------------
Xxxxxxxxx Xxxx
SECURITY AGREEMENT
SECURITY AGREEMENT dated as of June 19, 2002 between AMIS HOLDINGS,
INC., a Delaware corporation (the "LIEN GRANTOR"), and XXXXXXXXX XXXX (the
"EXECUTIVE").
WHEREAS, the parties have entered into an Employment Agreement dated as
of August 15, 2001 (as amended from time to time, the "EMPLOYMENT AGREEMENT");
and
WHEREAS, the Executive has asked the Lien Grantor to secure certain
obligations of the Lien Grantor under the Employment Agreement; and
WHEREAS, the Lien Grantor has agreed to do so, on the terms and
conditions set forth herein;
NOW THEREFORE, in furtherance of the foregoing, the parties hereto
agree as follows:
1. Security Interest. In order to secure the Secured Obligations (as
defined below), the Lien Grantor hereby grants to the Executive a continuing
security interest in the following (the "COLLATERAL"): all right, title and
interest of the Lien Grantor in and to account number 00000000 established with
the Securities Intermediary (as defined in the Securities Account Control
Agreement referred to below) in the name of "AMIS HOLDINGS, INC." (the
"ACCOUNT") and all cash, securities and other property from time to time held
therein or credited thereto and all proceeds of any of the foregoing. The
Company shall, on or promptly after the date hereof, make a deposit in the
Account in an amount equal to $4,200,000.
2. Secured Obligations. The obligations secured hereby are the
obligations of the Lien Grantor under Sections 3.03(c) and 3.04(a)(iii) of the
Employment Agreement (collectively, the "SECURED OBLIGATIONS").
3. Representations, Warranties and Covenants of the Lien Grantor. The
Lien Grantor represents and warrants to the Executive on the date hereof, and
covenants with the Executive, as follows:
(a) The Lien Grantor has good and marketable title to all of
the Collateral, free and clear of any lien, purchase option, call or similar
right of a third party, pledge, hypothecation, encumbrance, charge, mortgage,
deed of trust or security
interest (collectively, a "LIEN"), other than the Lien created hereunder and
Permitted Liens (as defined in the Securities Account Control Agreement).
(b) The Lien Grantor has not performed any acts that might
prevent the Executive from enforcing any of the provisions of this Agreement. No
financing statement, security agreement, mortgage or similar or equivalent
document or instrument covering all or part of the Collateral is on file or of
record in any jurisdiction in which such filing or recording would be effective
to perfect or record a Lien on such Collateral. After the date of this
Agreement, no Collateral will be in the possession or under the control (as
defined in UCC Section 8106) of any other person having a claim thereto or
security interest therein, other than the Securities Intermediary, whose
interest therein shall be limited to Permitted Liens.
(c) The Lien Grantor will, from time to time, at its expense,
execute, deliver, file and record any statement, assignment, instrument,
document, agreement or other paper and take any other action (including any
filing of financing or continuation statements under the UCC) that from time to
time may be necessary in order to (i) create, preserve or perfect the Lien on
the Collateral; or (ii) enable the Executive to exercise and enforce any of its
rights, powers and remedies with respect to the Collateral. The Lien Grantor
authorizes the Executive to file such financing statements or continuation
statements.
(d) The Lien Grantor will not (i) change its name or corporate
structure, (ii) change its location (determined as provided in UCC Section 9307)
or (iii) become bound, as provided in UCC Section 9203(d) or otherwise, by a
security agreement entered into by another person with respect to the Collateral
(other than with respect to Permitted Liens), unless the Lien Grantor shall have
given the Executive at least 30 days prior written notice thereof.
(e) The Lien Grantor will, promptly upon request, provide to
the Executive all information and evidence concerning the Collateral that the
Executive may reasonably request from time to time to enable the Executive to
enforce the provisions of this Agreement.
(f) Concurrently herewith, the parties hereto and the
Securities Intermediary referred to therein have entered into a securities
account control agreement substantially in the form attached as Exhibit A hereto
(the "SECURITIES ACCOUNT CONTROL AGREEMENT") in respect of the Account and the
Collateral.
(g) The Lien Grantor will make no transfers or withdrawals
from the Account (other than transfers or withdrawals of interest, dividends or
other distributions
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(other than payments of principal or returns of capital) received in respect of
funds or financial assets held in the Account) prior to the termination of the
Lien granted pursuant hereto in accordance with Section 6.
(h) The Lien Grantor will not sell or otherwise dispose of the
Collateral other than (i) pursuant to a sale or other disposition of financial
assets held in or credited to the Account against payment in cash which cash is
deposited into the Account or (ii) dispositions in exchange for Permitted
Investments (as defined in the Securities Account Control Agreement) or cash,
which Permitted Investments or cash is immediately credited to the Account.
4. Remedies. If the Lien Grantor shall fail to pay any of the Secured
Obligations in accordance with the terms of the Employment Agreement, the
Executive may, subject to the Securities Intermediary receiving written
Instructions (as defined in the Securities Account Control Agreement) from the
Executive, the Lien Grantor and the Investors (as defined in the Securities
Account Control Agreement) so instructing the Securities Intermediary, withdraw
from the Account funds held therein in an amount up to the amount of the Secured
Obligations then due and unpaid, and if there shall be no such funds or if such
funds shall be insufficient to pay all the Secured Obligations in full, sell or
otherwise dispose of the Collateral or any part thereof. The Executive shall
promptly remit to the Lien Grantor any amount received by the Executive in
excess of the amount of the Secured Obligation then due and payable to it. The
rights of the Executive to sell or otherwise dispose of any Collateral are
limited to the rights expressly set forth in this Section 4, and the Executive
hereby waives any and all other rights to sell, dispose of or otherwise realize
on any Collateral that it might otherwise have, whether arising by law, by
contract or otherwise. If requested to do by the Executive at any time that any
Secured Obligations are due but unpaid, the Lien Grantor shall, and shall cause
each of the Investors to, execute Instructions authorizing the Securities
Intermediary to release to the Executive funds held in the Account in an amount
equal to the amount of the Secured Obligations then due and unpaid.
5. Reimbursement. If (i) the Executive shall at any time pursuant to
the last sentence of Section 4 request the Lien Grantor to, and to cause each of
the Investors to, execute Instructions authorizing the Securities Intermediary
to release to the Executive funds held in the Account, (ii) the Lien Grantor or
any Investor shall refuse to execute such Instructions on the basis that no
Secured Obligations are then due and unpaid and (iii) the Executive shall obtain
a final, nonappealable judgement in any legal proceeding commenced by it
requiring the Lien Grantor and the Investors to execute such Instructions or
requiring the Securities Intermediary to release funds held in the Account to
the Executive, then the Lien Grantor shall promptly reimburse the Executive
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for any reasonable documented legal expenses incurred by the Executive in
connection with such proceeding.
6. Termination. The Lien granted by the Lien Grantor hereunder shall
terminate and all rights to the Collateral shall revert to the Lien Grantor upon
the earliest to occur of: (i) payment in full of the Secured Obligations, (ii)
the date on which the employment of the Executive pursuant to the Employment
Agreement is terminated (either voluntarily or involuntarily) if on such date
the amount payable by the Lien Grantor to the Executive pursuant to Section
3.03(c) and 3.04(a)(iii) of the Employment Agreement, as applicable, is $0 and
(iii) unless a notice has been delivered by the Executive to the Securities
Intermediary pursuant to the second sentence of Section 9(i)(d) of the
Securities Account Control Agreement on or prior to December 31, 2003, January
1, 2004. Upon the termination of the Lien granted hereby, the Executive will, at
the expense of the Lien Grantor, execute and deliver to the Lien Grantor such
documents as the Lien Grantor shall request to evidence the termination of the
Lien.
7. Definition of UCC. As used herein, "UCC" means the Uniform
Commercial Code as in effect from time to time in the State of California;
provided that, if perfection or the effect of perfection or non-perfection or
the priority of the Lien on the Collateral is governed by the Uniform Commercial
Code as in effect in a jurisdiction other than California, "UCC" means the
Uniform Commercial Code as in effect from time to time in such other
jurisdiction for purposes of the provisions hereof relating to such perfection,
effect of perfection or non-perfection or priority.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, except as otherwise
required by mandatory provisions of law and except to the extent that remedies
provided by the laws of any jurisdiction other than the State of California are
governed by the laws of such jurisdiction.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date set forth above.
AMIS HOLDINGS, INC.
By
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Name:
Title:
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XXXXXXXXX XXXX
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