Exhibit 10.38
SUPPLEMENTAL AGREEMENT NO. 1
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to the
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ADVISORY AGREEMENT
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This Supplemental Agreement No. 1 (this "Supplemental Agreement") is
entered into as of August 2, 2000 by and among ChipPAC, Inc., a Delaware
corporation, ChipPAC Limited, a corporation 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") and Xxxx Capital, Inc., a Delaware
corporation ("Bain") (collectively, the "Parties"), and hereby amends and
supplements the Advisory Agreement (the "Advisory Agreement") entered into 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"), the Company is
preparing an initial public offering (the "Offering");
WHEREAS, the Parties have agreed that upon completion of the Offering, the
Company 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;
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 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 of the Advisory Agreement.
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.
b. Payment of Termination Fee. The Company shall have delivered to
Bain, by wire transfer of immediately available funds to an account or accounts
as Bain shall designate, an amount equal to $4 million (the "Termination Fee").
c. Payment of All Fees. The Company shall have delivered to Bain by
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. The Advisory Agreement between the Companies and SXI Group LLC
shall have been terminated on terms identical to those contained in this
Supplemental Agreement.
3. 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
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
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4. 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, 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.
5. Successors. This Supplemental Agreement and all the obligations and
benefits hereunder shall inure to the successors and assigns of the parties.
6. 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.
7. 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.
8. 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 on or 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 /s/ Xxxxxx Xxxxxxxx
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Name (Please print): Xxxxx Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
CHIPPAC LIMITED
By /s/ Xxxxxxx Xxxxxxx
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Name (Please print): Xxxxxxx xxxxxxx
Title: Director
CHIPPAC INTERNATIONAL COMPANY
LIMITED
By /s/ Xxxxxxx Xxxxxxx
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Name (Please print): Xxxxxxx Xxxxxxx
Title: Director
XXXX CAPITAL, INC.
By /s/ Xxxxxx Xxxxxx
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Name (Please print): Xxxxxx Xxxxxx
Title: Managing Director
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