exv10w4



 






Exhibit 10.4




AMENDMENT NO. 2 TO




ADVISORY AGREEMENT




     This Amendment No. 2 to the Advisory Agreement (this “Amendment”) is made and entered into as
of January 18, 2006 by and between SMART Modular Technologies, Inc. (“SMART”) and SCP Management
Company, L.L.C. (the “Advisor”). Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Advisory Agreement dated as of April 16, 2004 by and between
SMART and the Advisor, as amended (the “Original Agreement”).



     WHEREAS, SMART’s ultimate parent, SMART Modular Technologies (WWH), Inc., is preparing to
issue and sell its ordinary shares 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 upon consummation of the Offering (i) SMART shall
pay to the Advisor all accrued and unpaid Advisory Fees under the Original Agreement on the
Effective Date (as defined below), (ii) SMART’s 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 April 16, 2014, shall terminate and (iii) the Advisor’s obligation to provide services each
year through the year ended April 16, 2014 under Section 2 of the Original Agreement shall
terminate;



     WHEREAS, SMART shall pay to the Advisor the Aggregate Fee (as defined below) for services
rendered prior to the Effective Date (as defined below);



     WHEREAS, the parties have agreed that fees for future services provided to SMART and/or its
affiliates by the Advisor in connection with acquisitions, dispositions, financing transactions or
other services shall be paid in accordance with this Amendment; and



     WHEREAS, in accordance with the foregoing, Advisor and SMART 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 are 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 date of the consummation
of the Offering (the “Effective Date”), provided that if the consummation of the Offering has not
occurred on or prior to June 30, 2006, 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 SMART and/or its affiliates 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 Company
and/or its affiliates such services as may be agreed in writing by the Advisor and
the Company pursuant to Section 3(b) of the Amended Agreement. Such services may
include, without limitation, the following:




          (a) executive and management services;




          (b) identification, support and analysis of acquisitions and dispositions by
the Company and/or its affiliates;




          (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 for, and hiring of,
executives; and




          (f) other services for the Company and/or its affiliates upon which the
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 Company and/or its affiliates except such
services as may be agreed in writing by the Advisor and the Company pursuant to
Section 3(c) 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 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 after
the Effective Date.




          (b) Section 3 of the Amended Agreement is as follows:





     “3. Fees.




     (a) Not later than 10 business days following the Effective Date, the Advisor
shall be paid by the Company any and all Advisory Fees pursuant to the Original
Agreement that are accrued and remain unpaid as of the Effective Date.



 









 






     (b) Not later than 10 business days following the Effective Date, in
consideration of the services provided by the Advisor prior to the Effective Time,
the Advisor shall be paid by the Company a fee in the amount of $3,000,000 (the
“Aggregate Fee”), provided that Francisco Partners Management, LLC (“FP”) and,
collectively, TPG GenPar III, L.P., TPG GenPar IV, L.P. and T3 GenPar II, L.P.
(collectively, “TPG”) shall contemporaneously be paid an Aggregate Fee in the same
amount pursuant to the Advisory Agreement dated April 16, 2004, between the Company
and FP and the Advisory Agreement, dated April 16, 2004, between the Company and
TPG, respectively.




     (c) In exchange for such future services rendered by the Advisor and/or its
affiliates as may be agreed between the Company and the Advisor in connection with
transactions of the Company and/or its affiliates 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 and/or its affiliates shall have the right
to receive a fee from the Company in an amount to be agreed between the Company and
the Advisor and/or its affiliates (the “Services Fee”) plus reasonable out-of-pocket
expenses incurred by the Advisor and/or its affiliates, provided that FP and TPG
shall have the right to receive a Services Fee in the same amount pursuant to the FP
Agreement and TPG Agreement, respectively, plus reasonable out-of-pocket expenses
incurred by FP and TPG, respectively.




     (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, 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 and/or its affiliates on the board of directors
of the Company.”




     4. Applicable Law. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of California, without regard to any choice of law or conflict of law
provision or rule (whether of the State of California or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of California.




     5. Counterparts. This Amendment may be executed and delivered by each party hereto in
separate counterparts, each of which when so executed and delivered shall be deemed to be an
original and all of which taken 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 SMART, as appropriate,
	 
	 	 
	 

	 	SMART Modular Technologies, Inc.
	 

	 	4211 Starboard Drive
	 

	 	Fremont, CA 94538
	 

	 	Attention: Jack Pacheco
	 

	 	Facsimile: (510) 360-8500
	 
	 	 
	 

	 	If to the Advisor,
	 
	 	 
	 

	 	SCP Management Company, L.L.C.
	 

	 	1135 Saguare Common
	 

	 	Fremont, CA 94539 
	 

	 	Attention: Ajay Shah
	 

	 	Facsimile: (408) 982-0207






     IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written
above.



	 	 	 	 	 
	 	SMART MODULAR TECHNOLOGIES, INC.

 	 
	 	By:  	/s/ Iain MacKenzie	 
	 	 	Name:  	Iain MacKenzie	 
	 	 	Title:  	Chief Executive Officer
and President	 
	 



	 	 	 	 	 
	 	SCP MANAGEMENT COMPANY, L.L.C.

 	 
	 	By:  	Ajay Shah
 	 
	 	 	 
	 	By:  	/s/ Ajay Shah	 
	 	 	Name:  	Ajay Shah 	 
	 	 	Title: