EXHIBIT 10.22
AMENDMENT NO. 1 TO
ADVISORY AGREEMENT
This Amendment No. 1 to the Advisory Agreement (this "AMENDMENT") is
made and entered into as of _________, 2003 by and between AMIS Holdings, Inc.
("HOLDINGS"), AMI Semiconductor, Inc. (the "COMPANY" and, together with
Holdings, the "COMPANIES") and CVC Management LLC (the "ADVISOR"). Capitalized
terms used but not defined herein shall have the meanings assigned to such terms
in the Advisory Agreement dated as of December 21, 2000 by and between Holdings
and TBW LLC, as assigned by TBW LLC to CVC Management LLC (the "ORIGINAL
AGREEMENT").
WHEREAS, Holdings is preparing to issue and sell shares of its common
stock to the public (the "OFFERING") pursuant to a registration statement on
Form S-1 filed with the Securities and Exchange Commission;
WHEREAS, the parties hereto have agreed that in connection with the
consummation of the Offering (i) the Companies shall pay to the Advisor all
accrued and unpaid Advisory Fees under the Original Agreement on the Effective
Date (as defined below), (ii) the Companies' obligation to pay to the Advisor
the Advisory Fee, which is payable on an annual basis pursuant to Section 3 of
the Original Agreement each year through December 21, 2010, shall terminate and
(iii) the Advisor's obligation to provide services each year through the year
ended December 21, 2010 under Section 2 of the Original Agreement shall
terminate;
WHEREAS, the Companies shall pay to the Advisor the Aggregate Fee (as
defined below) for investment banking services rendered prior to the Effective
Date (as defined below);
WHEREAS, the parties have agreed that fees for future services provided
to the Company by the Advisor in connection with acquisitions, dispositions or
financing transactions shall be paid in accordance with this Amendment; and
WHEREAS, in accordance with the foregoing, Advisor and Holdings wish to
amend the Original Agreement (as amended pursuant to this Amendment, the
"AMENDED AGREEMENT") as follows.
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 to amend the Original Agreement as follows:
1. Effectiveness. This Amendment shall be effective upon the
consummation of the Offering (the "EFFECTIVE DATE"), provided that if the
consummation of the Offering has not occurred on or prior to December 31, 2003,
this Amendment shall terminate and be of no force or effect.
2. Amendment of Section 2. (a) Section 2 of the Original
Agreement is deleted in its entirety from the Original Agreement.
Notwithstanding anything in the Original Agreement to the contrary, the parties
hereto acknowledge and agree that the Advisor shall have no obligation to
provide any future services to the Companies pursuant to Section 2 of the
Original Agreement.
(b) Section 2 of the Amended Agreement is as follows:
"2. Services. Advisor may perform or cause to be
performed for the Companies and/or their subsidiaries such
Transaction Services as may be agreed in writing by the
Advisor and the Companies pursuant to Section 3(b) of the
Amended Agreement. Such Transaction Services 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.
Notwithstanding any provision in this Amended
Agreement to the contrary, each of the parties hereto
acknowledges and agrees that the Advisor shall have no
obligation to provide any services to the Companies except
such Transaction Services as may be agreed in writing by the
Advisor and the Companies pursuant to Section 3(b) of the
Amended Agreement."
3. Amendment of Section 3. (a) Section 3 of the Original
Agreement is deleted in its entirety from the Original Agreement.
Notwithstanding anything
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in the Original Agreement to the contrary, the parties hereto acknowledge and
agree that the Advisor shall have no right to receive the Advisory Fee pursuant
to Section 3 of the Original Agreement for any services rendered or fees after
the Effective Date.
(b) Section 3 of the Amended Agreement is as follows:
"3. Fees.
(a) Upon the Effective Date, the Advisor shall
be paid by the Company or Holdings any and all Advisory Fees
pursuant to the Original Agreement that are accrued and remain
unpaid as of the Effective Date, provided that Francisco
Partners GP, LLC (together with its successors or assigns,
"FRANCISCO") shall contemporaneously be paid any and all
Advisory Fees pursuant to the Original Agreement that are
accrued and remain unpaid as of the Effective Date, pursuant
to Amendment No. 1 to the Advisory Agreement between the
Companies and Francisco dated as of the date hereof (as the
same may be amended, replaced or modified from time to time,
the "FRANCISCO AGREEMENT").
(b) Upon the Effective Date, in consideration of
the Transaction Services (as defined below) provided by the
Advisor and other investment banking services prior to the
Effective Time, the Advisor shall be paid by the Company or
Holdings a fee in the amount of $4.25 million (the "AGGREGATE
FEE"), provided that Francisco shall contemporaneously be paid
an Aggregate Fee in the same amount pursuant to the Francisco
Agreement.
(c) In exchange for such future services
("TRANSACTION SERVICES") as may be agreed between the
Companies and the Advisor in connection with transactions of
Holdings, the Company or their subsidiaries or pursuant to any
management, consulting, financial advisory, financing,
underwriting or placement agreement or in respect of other
investment banking activities, including in connection with
acquisitions or divestitures, the Advisor shall have the right
to receive a fee from Holdings or the Company in an amount to
be agreed between the Companies and the Advisor (the "SERVICES
FEE") plus reasonable out-of-pocket expenses incurred by the
Advisor, provided that Francisco shall have the right to
receive a Services Fee in the same amount pursuant to the
Francisco Agreement plus reasonable out-of-pocket expenses
incurred by Francisco.
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(d) Notwithstanding Section 3(a), 3(b) or 3(c),
the timing of the payment of the Aggregate Fee or any Services
Fee agreed upon pursuant to this Amended Agreement may be
deferred at the Advisor's sole discretion.
(e) The parties hereto acknowledge and agree
that the Aggregate Fee and any Services Fee may be paid,
without duplication, by either Holdings or the Company or
both.
(f) The parties hereto acknowledge and agree
that, in addition to the Aggregate Fee and any Services Fee,
the Advisor may become entitled to receive cash or equity
compensation and reimbursement of out-of-pocket expenses due
to the service of officers or employees of the Advisor or its
affiliates on the board of directors of Holdings or the
Company."
4. Applicable Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard
to the conflicts of laws rules of such state.
5. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
6. Original Agreement Effectiveness. Other than the modifications
of the Original Agreement contemplated herein, all other terms and provisions of
the Original Agreement shall remain in full force and effect.
7. 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:
If to the Companies, as appropriate,
AMIS Holdings, Inc.
AMI Semiconductor, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
If to the Advisor,
CVC Management LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
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Attention: Xxxx X. Xxxxxx XX
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
AMIS HOLDINGS, INC.
By: __________________________________
Name: Xxxxx Xxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
AMI SEMICONDUCTOR, INC.
By: __________________________________
Name: Xxxxx Xxxxxx
Title: Senior Vice President, Chief
Financial Officer and Secretary
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CVC MANAGEMENT LLC
By: __________________________________
Name:
Title:
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