Exhibit 99.5
EXECUTION COPY
$50,000,000
CHIPPAC, INC.
8% CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2011
REGISTRATION RIGHTS AGREEMENT
June 22, 2001
Citicorp Mezzanine III, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
ChipPAC, Inc., a Delaware corporation (the "COMPANY"), proposes to
issue and sell to Citicorp Mezzanine III, L.P. (the "PURCHASER"), upon the terms
set forth in a purchase agreement, dated as of June 11, 2001 (the "PURCHASE
AGREEMENT"), $50,000,000 aggregate principal amount of its 8% Convertible
Subordinated Notes due 2011 (the "NOTES"). The Notes will be issued pursuant to
an Indenture, dated as of June 15, 2001 (the "INDENTURE"), between the Company
and Firstar Bank, N.A. as Trustee (the "TRUSTEE"). Under the terms of the
Indenture, the Notes are convertible, in whole or in part, into shares of the
Company's Class A common stock, $.01 par value per share (the "CONVERSION
SHARES"; the Notes and the Conversion Shares are collectively referred to as the
"Securities"), at the option of the holders thereof at any time following the
date of original issuance thereof at the Conversion Price (as defined in the
Notes) set forth in the Notes, as adjusted from time to time pursuant to the
Indenture.
As an inducement to the Purchaser to enter into the Purchase Agreement,
the Company agrees with the Purchaser, for the benefit of the holder(s) of the
Notes, from time to time, (including, without limitation, the Purchaser) and the
holder(s), from time to time, of the Conversion Shares (collectively, the
"HOLDERS"), as follows:
1. RESALE SHELF REGISTRATION.
(a) The Company shall, at its cost, use its commercially
reasonable efforts to file as promptly as practicable (but in no event
more than 150 days after the Closing Date (as defined in the Purchase
Agreement)) with the Securities and Exchange Commission (the
"COMMISSION") and thereafter shall use commercially reasonable efforts
to cause to be declared effective a registration statement (the "SHELF
REGISTRATION STATEMENT") on an appropriate form under the Securities
Act of 1933, as amended (the "SECURITIES ACT"), within 220 days of the
Closing Date, relating to the offer and sale of the Transfer Restricted
Securities (as defined in Section 8(d) hereof) by the Holders thereof
from time to time in accordance with the methods of distribution set
forth in the Shelf Registration Statement and Rule 415 under the
Securities Act (hereinafter, the "SHELF REGISTRATION");
Registration Rights Agreement - Page 2
PROVIDED, HOWEVER, that no Holder (other than the Purchaser) shall be
entitled to have the Securities held by it covered by such Shelf
Registration Statement unless such Holder agrees in writing to be bound
by all the provisions of this Agreement applicable to such Holder.
(b) The Company shall use commercially reasonable efforts to keep
the Shelf Registration Statement continuously effective in order to
permit the prospectus included therein to be lawfully delivered by the
Holders of the relevant Transfer Restricted Securities, for a period of
two (2) years (or for such longer period if extended pursuant to
Section 2(h) below or by the last sentence of this Section 1(b)) from
the date of its effectiveness or such shorter period that will
terminate when all the Transfer Restricted Securities covered by the
Shelf Registration Statement (i) have been sold pursuant thereto or
(ii) are no longer Transfer Restricted Securities as defined in Section
8(d) hereof (in any such case, such period being called the "SHELF
REGISTRATION PERIOD"). The Company shall be deemed not to have used its
commercially reasonable efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes
any action that would result in Holders of Securities covered thereby
not being able to offer and sell such Transfer Restricted Securities
during that period, unless (i) such action is required by applicable
law or (ii) upon the occurrence of any event contemplated by Section
2(b)(v) below, such action is taken by the Company in good faith and
for valid business reasons and the Company thereafter complies with the
requirements of Section 2(h) hereof. Notwithstanding anything herein to
the contrary, to the extent the Shelf Registration Statement is
declared effective prior to the 180th day following the Closing Date,
the period of effectiveness of such Shelf Registration Statement
provided for in this Section 1(b) shall be extended by the number of
days in the period from the effectiveness date of such Shelf
Registration Statement to the 180th day following the Closing Date.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and
the related prospectus and any amendment or supplement thereto, as of
the effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) Each Holder agrees that if such Holder wishes to sell such
Holder's Transfer Restricted Securities pursuant to a Shelf
Registration Statement and related prospectus, it will do so in
accordance with this Section 1(d). Each Holder wishing to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement and
related prospectus agrees to deliver a Notice and Questionnaire (the
form of which is attached as ANNEX A hereto) to the Company. The
Company will include in the Shelf Registration Statement as a selling
securityholder each Holder that delivers such properly completed Notice
and Questionnaire as of or prior to the Closing Date. The Company will
use its commercially reasonable efforts to include in the Shelf
Registration Statement any Holder which fails to provide such properly
completed Notice and Questionnaire as of or prior to the Closing Date
but otherwise provides such properly completed Notice and
Registration Rights Agreement - Page 3
Questionnaire prior to the commencement of the Shelf Registration
Period. Except as described above and below, the Company shall have no
obligation to include in the Shelf Registration Statement a Holder
which fails to provide the Company with such properly completed Notice
and Questionnaire as of or prior to the Closing Date. From and after
the date the Shelf Registration Statement is declared effective, the
Company shall, as promptly as is practicable after the date a properly
completed Notice and Questionnaire is delivered, and in any event
within thirty (30) days after such date, (i) if required by law, file
with the Commission a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by applicable law,
file a supplement to the related prospectus or a supplement or
amendment to any document incorporated therein by reference or file any
other required document so that the Holder delivering such Notice and
Questionnaire is named a selling securityholder in the Shelf
Registration Statement and the related prospectus in such a manner as
to permit such Holder to deliver such prospectus to purchasers of the
Transfer Restricted Securities in accordance with applicable law and,
if the Company shall file a post-effective amendment to the Shelf
Registration Statement, use all commercially reasonable efforts to
cause such post-effective amendment to be declared effective under the
Securities Act as promptly as practical, but in any event by the date
that is thirty (30) business days after the date such post-effective
amendment is required by this clause to be filed; (ii) provide such
Holder copies of any documents filed pursuant to Section 1(d)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 1(d)(i); PROVIDED, THAT if such Notice and
Questionnaire is delivered during a period in which the use of such
prospectus is suspended pursuant to Section 2(h) hereof, the Company
shall so inform the Holder delivering such Notice and Questionnaire and
shall take the actions set forth in clauses (i), (ii) and (iii) above
upon expiration of such suspension period. Notwithstanding anything
contained herein to the contrary, the Company shall be under no
obligation to name any Holder that has not supplied the requisite
information as required by and in accordance with the procedures and
time periods set forth in this Section 1(d) as a selling securityholder
in any Shelf Registration Statement and related prospectus and any
amendment or supplement thereto.
2. SHELF REGISTRATION PROCEDURES. In connection with any Shelf
Registration contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company shall (i) furnish to the Purchaser, prior to the
filing thereof with the Commission, a copy of the Shelf Registration
Statement and each amendment thereof and each supplement, if any, to
the prospectus included therein and, the Company shall use its best
efforts to reflect in each such document, when so filed with the
Commission, such comments as the Purchaser reasonably may propose and
(ii) include the names of the Holders, who propose to sell Transfer
Restricted Securities pursuant to the Shelf Registration Statement, as
selling securityholders; PROVIDED, THAT the Purchaser and Holders have
complied with Section 1(d).
(b) The Company shall give written notice to the Purchaser and
the Holders of the Transfer Restricted Securities included within the
coverage of the Shelf Registration Statement (which notice pursuant to
clauses (ii)-(v) hereof shall be accompanied by an
Registration Rights Agreement - Page 4
instruction to suspend the use of the prospectus until the requisite
changes have been made):
(i) when the Shelf Registration Statement or any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of
any notification with respect to the suspension of the
qualification of the Transfer Restricted Securities for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires the Company
to make changes in the Shelf Registration Statement or the
prospectus in order that the Shelf Registration Statement or the
prospectus do not contain an untrue statement of a material fact
nor omit to state a material fact required to be stated therein
or necessary to make the statements therein (in the case of the
prospectus, in light of the circumstances under which they were
made) not misleading, which written notice need not provide any
detail as to the nature of such event.
(c) The Company shall make every commercially reasonable effort
to obtain the withdrawal at the earliest possible time, of any order
suspending the effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Securities
included within the coverage of the Shelf Registration, without charge,
at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
(e) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Transfer Restricted Securities included
within the coverage of such Shelf Registration, without charge, as many
copies of the prospectus (including each preliminary prospectus)
included in the Shelf Registration Statement and any amendment or
supplement thereto as such person may reasonably request. The Company
consents, subject to the provisions of this Agreement, to the use of
the prospectus or any amendment or supplement thereto by each of the
selling Holders of the Transfer Restricted Securities in connection
with the offering and sale of the Transfer Restricted Securities
covered by the prospectus, or any amendment or supplement thereto,
included in the Shelf Registration Statement.
Registration Rights Agreement - Page 5
(f) Prior to any public offering of the Securities pursuant to
the Shelf Registration Statement, the Company shall register or qualify
or cooperate with the Holders of the Securities included therein and
their respective counsel in connection with the registration or
qualification of the Transfer Restricted Securities for offer and sale
under the securities or "blue sky" laws of such states of the United
States as any Holder of the Securities reasonably requests in writing
and do any and all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the Securities
covered by such Shelf Registration Statement; PROVIDED, HOWEVER, that
the Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it is not then so qualified or (ii)
take any action which would subject it to general service of process or
to taxation in any jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to the
Shelf Registration Statement free of any restrictive legends and in
such denominations and registered in such names as the Holders may
request a reasonable period of time prior to sales of the Securities
pursuant to such Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs
(ii) through (v) of Section 2(b) above during the period for which the
Company is required to maintain an effective Shelf Registration
Statement, the Company shall as required hereby prepare and file a
post-effective amendment to such Shelf Registration Statement or a
supplement to the related prospectus and any other required document so
that, as thereafter delivered to Holders of the Securities or
purchasers of Securities included within the coverage of such Shelf
Registration Statement, the prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that the Company may delay filing and
distributing any such supplement or amendment (and continue the
suspension of the use of the related prospectus) if the Company
determines in good faith that such supplement or amendment would, in
the reasonable judgement of the Company, (i) interfere with or affect
the negotiation or completion of a transaction that is being
contemplated by the Company or (ii) involve initial or continuing
disclosure obligations that are not in the best interests of the
Company's stockholders at such time; provided, further, that neither
such delay nor such suspension shall extend for a period of more than
90 consecutive days or an aggregate of 180 days in any twelve-month
period. If the Company notifies the Purchaser and the Holders of the
Securities in accordance with paragraphs (ii) through (v) of Section
2(b) above to suspend the use of such prospectus until the requisite
changes to such prospectus have been made, then the Purchaser and the
Holders of the Securities shall suspend use of such prospectus, and the
period of effectiveness of such Shelf Registration Statement provided
for in Section 1(b) above shall be extended by the number of days from
and including the date of the giving of such notice to and including
the date when the Purchaser and the Holders of the Securities shall
have received such amended or supplemented prospectus pursuant to this
Section 2(h).
Registration Rights Agreement - Page 6
(i) Not later than the effective date of the Shelf Registration
Statement, the Company will provide CUSIP numbers for the Notes and the
Conversion Shares registered under the Shelf Registration Statement and
provide the Trustee with a certificate for the Notes, in a form
eligible for deposit with The Depository Trust Company.
(j) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the
Shelf Registration to enable the Holders to resell their securities in
accordance with this Agreement.
(k) The Company shall cause the Indenture to be qualified under
the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE
ACT"), in a timely manner and containing such changes, if any, as shall
be necessary for such qualification. In the event that such
qualification would require the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant
to the applicable provisions of the Indenture.
(l) Each Holder agrees, by acquisition of the Securities, that no
Holder of Securities shall be entitled to sell any of such Securities
pursuant to any Shelf Registration Statement or to receive a prospectus
relating thereto, unless such Holder has furnished the Company with a
Notice and Questionnaire as required pursuant to and in accordance with
Section 1(d) hereof and the information set forth in the next sentence.
Each Holder agrees promptly to furnish the Company all information
required to be disclosed in order to make the information previously
furnished to the Company by such Holder not misleading and any other
information regarding such Holder and the distribution of such
Securities as the Company may from time to time reasonably request.
(m) In the event of any underwritten public offering, the Company
shall enter into such customary agreements (including, if requested, an
underwriting agreement in customary form) and take all such other
action, if any, as any managing underwriter of such offering and Holder
of the Securities shall reasonably request in order to facilitate the
disposition of the Securities pursuant to any Shelf Registration;
PROVIDED, HOWEVER, that the Company shall not be required to facilitate
an underwritten offering pursuant to a Shelf Registration Statement by
any Holders unless the offering relates to at least $20,000,000
principal amount of the Notes or an equivalent number of Conversion
Shares (as adjusted for any stock dividends, stock splits and capital
changes).
(n) The Company shall (i) make reasonably available for
inspection by any underwriter participating in any disposition pursuant
to the Shelf Registration Statement and any agent retained by any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and (ii) cause the
Company's officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by any such
underwriter or agent in connection with the Shelf Registration
Statement, in each case, as shall be reasonably necessary to enable
such persons, to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; PROVIDED, HOWEVER, that the
foregoing inspection and information
Registration Rights Agreement - Page 7
gathering shall be coordinated on behalf of the Purchaser by you and
the other parties, by one firm of counsel, which firm shall be
designated as described in Section 6 hereof.
(o) In the event of an underwritten offering, the Company shall
cause (i) its counsel to deliver an opinion and updates thereof
relating to the Securities in customary form and substance addressed to
the managing underwriters thereof and dated, in the case of the initial
opinion, the effective date of such Shelf Registration Statement; (ii)
its executive officers and directors to execute and deliver all
customary documents and certificates and updates thereof requested by
any underwriters of the applicable Securities and (iii) the independent
public accountants for which financial information is provided in the
Shelf Registration Statement to provide to the selling Holders of the
applicable Transfer Restricted Securities and any underwriter therefor
a comfort letter in customary form, type and substance customarily
covered in comfort letters in connection with primary underwritten
offerings.
(p) The Company shall use its commercially reasonable efforts to
take all other steps necessary to effect the registration of the
Securities covered by a Shelf Registration Statement contemplated
hereby.
3. DEMAND REGISTRATION.
(a) From and after the second anniversary of the Closing Date,
Holders of at least 50% of the outstanding Transfer Restricted
Securities, subject to Section 3(e) below, (the "INITIATING HOLDERS")
may request, in writing, registration under the Securities Act of all
or part of their Transfer Restricted Securities. Within 10 days after
receipt of any such request, the Company will give notice of such
request to all other Holders of Transfer Restricted Securities ("OTHER
HOLDERS"). Thereafter, the Company will use all commercially reasonable
efforts to effect the registration on an appropriate form under the
Securities Act and will include in such registration, subject to
Section 3(e) below, all Transfer Restricted Securities held by the
Initiating Holders and Other Holders with respect to which the Company
has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice. All registrations initiated
by an Initiating Holder pursuant to this Section 3(a) are referred to
herein as "DEMAND REGISTRATIONS." Notwithstanding anything herein to
the contrary, the Company need not effect any requested Demand
Registration unless the expected gross proceeds of such registration
exceed $15,000,000.
(b) Notwithstanding anything in Section 3(a) above to the
contrary, the Company shall not be obligated to take any action to
effect any such registration pursuant to Section 3(a) above:
(i) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of
process in effecting such registration, unless the Company is
already subject to service in such jurisdiction and except as may
be required by the Securities Act;
Registration Rights Agreement - Page 8
(ii) During the period starting with the date sixty (60)
days prior to the Company's estimated date of filing of, and
ending on one hundred twenty (120) days immediately following the
effective date of, any registration statement pertaining to
securities of the Company (other than a registration of
securities in a Rule 145 transaction or with respect to an
employee benefit plan), provided that the Company is actively
employing in good faith all reasonable effects to cause such
registration statement to become effective;
(iii) After the Company has effected two (2) such
registrations pursuant to Section 3(a), and such registrations
have been declared or ordered effective;
(iv) If the Company shall furnish to such Holders a
certificate signed by the Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors
it would be seriously detrimental to the Company or its
stockholders for a registration statement to be filed in the near
future, then the Company's obligation to use its commercially
reasonable efforts to comply under Section 3(a) shall be deferred
for a period not to exceed one hundred eighty (180) days from the
date of receipt of written request from an Initiating Holder;
provided that the Company may not exercise this deferral right
more than once per twelve (12) month period.
(c) A registration requested pursuant to Section 3(a) shall not
be deemed to have been effected (i) unless a registration statement
with respect thereto has been declared effective by the Commission,
(ii) if after it has become effective, such registration is interfered
with by any stop order, injunction or the order or requirement of the
Commission or other governmental agency or court for any reason, and,
as a result thereof, the Transfer Restricted Securities covered thereby
have not been sold or (iii) the registration statement does not remain
effective for a period expiring the earlier of 90 days after the
effective date thereof or the completion of the distribution of the
Transfer Restricted Securities included in such registration statement.
The Holders of the Transfer Restricted Securities shall be permitted to
withdraw all or any part of the Transfer Restricted Securities from a
Demand Registration at any time prior to the effective date of such
Demand Registration; provided that in the event of, and concurrently
with such withdrawal, the Holders responsible for such Demand
Registration shall either (i) pay or reimburse the Company for all fees
and expenses (including counsel fees and expense) incurred by them and
the Company prior to such withdrawal or (ii) agree to forfeit one of
its Demand Registration rights hereunder.
(d) In the event that a registration pursuant to Section 3(a) is
for a registered public offering involving an underwriting, the Company
shall so advise the Holders as part of the notice given pursuant to
Section 3(a). In such event, the right of any Holder to registration
pursuant to Section 3(a) shall be conditioned upon such Holder's
participation in the underwriting arrangements required by this Section
3, and the inclusion of such Holder's Transfer Restricted Securities in
the underwriting to the extent requested shall be limited to the extent
provided herein. The Company shall (together with all Holders proposing
to distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter
Registration Rights Agreement - Page 9
selected for such underwriting by the Initiating Holder, but subject
to the Company's reasonable approval.
(e) If the Company includes in any underwritten Demand
Registration any securities which are not Transfer Restricted
Securities and the managing underwriters advise the Company in writing
that in their opinion the number of Transfer Restricted Securities
proposed to be included exceeds the number of Transfer Restricted
Securities and other securities which can be sold in such offering, the
Company will include in such registration (i) first, the Transfer
Restricted Securities requested to be included which, in the opinion of
such underwriters, can be sold, by the Initiating Holders initiating
the Demand Registration, (ii) second, the Transfer Restricted
Securities proposed to be included in such registration by the Other
Holders exercising their registration rights hereunder, pro rata based
upon the total number of Transfer Restricted Securities which such
Other Holders propose to include in such registration and (iii) third,
the securities proposed to be included in such registration by any
other holders as determined by the Company and the managing
underwriters.
4. PIGGYBACK REGISTRATION.
(a) From and after the second anniversary of the Closing Date,
whenever the Company proposes to register any securities substantially
similar to the Transfer Restricted Securities under the Securities Act
(other than on S-8 or any successor forms), and the form of
registration statement to be used may be used for the registration of
Transfer Restricted Securities (a "PIGGYBACK REGISTRATION"), the
Company will give notice to all Holders of Transfer Restricted
Securities of the intention to effect such a registration and will
include in such registration, subject to Sections 4(c) and 4(d) below,
all Transfer Restricted Securities with respect to which the Company
has received written requests for inclusion therein. Such requests for
inclusion shall be in writing and delivered to the Company within 15
days after the Holders' receipt of such notice and shall specify the
number of Transfer Restricted Securities intended to be disposed of and
the intended method of distribution thereof. Any Holder of Transfer
Restricted Securities shall have the right to withdraw its request for
inclusion of its Transfer Restricted Securities in any registration
statement pursuant to this Section 4(a) by giving written notice to the
Company of its request to withdraw. The Company may withdraw a
Piggyback Registration at any time prior to the time it becomes
effective.
(b) If the registration of which the Company gives notice is for
a registered public offering involving an underwriting, the Company
shall so advise the Holders as a part of the written notice given
pursuant to Section 4(a). In such event the right of any Holder to
registration pursuant to Section 4(a) shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of
Transfer Restricted Securities in the underwriting to the extent
provided herein. All Holders proposing to distribute their securities
through such underwriting shall (together with the Company and the
other holders distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company.
Registration Rights Agreement - Page 10
(c) If a Piggyback Registration is an underwritten primary
registration on behalf of the Company, and the managing underwriters
advise the Company that in their opinion the number of securities
requested to be included in such registration exceeds the number which
can be sold in such offering, the Company will include in such
registration (i) first, the securities the Company proposes to sell,
(ii) second, the securities proposed to be included in such
registration by the holders (including Holders of Transfer Restricted
Securities) of the same securities proposed to be sold by the Company
and (iii) third, the securities proposed to be included in such
registration by the holders (including Holders of Transfer Restricted
Securities) of substantially the same securities proposed to be sold by
the Company, in each of clauses (ii) and (iii) pro rata among such
holders exercising their respective piggyback registration rights
thereof based upon the total number of securities which such holders
beneficially own.
(d) If a Piggyback Registration is an underwritten secondary
registration on behalf of holders (other than the Holders of the
Transfer Restricted Securities) of the Company's securities, and the
managing underwriters advise the Company that in their opinion the
number of securities requested to be included in such registration
exceeds the number which can be sold in such offering, the Company will
include in such registration (i) FIRST, the securities which such
initiating holders propose to sell; (ii) SECOND, the securities the
Company proposed to be included in such registration; (iii) THIRD, the
securities proposed to be included in such registration by the holders
(including Holders of Transfer Restricted Securities) of the same
securities proposed to be sold by such initiating holders and (iv)
FOURTH, the securities proposed to be included in such registration by
the holders (including Holders of Transfer Restricted Securities) of
substantially the same securities proposed to be sold by such
initiating holders, in each of clauses (iii) and (iv) pro rata among
any such holders exercising their respective piggyback registration
rights thereof based upon the total number of securities which such
holders beneficially own.
5. DEMAND AND PIGGYBACK REGISTRATION PROCEDURES. In the case of
each registration effected by the Company pursuant to Sections 3 and 4, the
Company will keep each Holder advised in writing as to the initiation of each
registration and as to the completion thereof. At its expense the Company will:
(a) With respect to Demand Registrations, the Company shall use
its commercially reasonable efforts to file as promptly as practicable
(but in no event more than 120 days after the date the Company is in
receipt of written requests by the Other Holders for inclusion in such
Demand Registration (the "DEMAND INITIATION DATE")) and thereafter
shall use commercially reasonable efforts to cause to be declared
effective a registration statement on an appropriate form under the
Securities Act, within 180 days after the Demand Initiation Date,
relating to the offer and sale of the Transfer Restricted Securities;
(b) Furnish to the Holders participating in such registration and
to the underwriters of the securities being registered such reasonable
number of copies of the Registration Statement, preliminary prospectus,
final prospectus and such other
Registration Rights Agreement - Page 11
documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities;
(c) Prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection with such registration statements as may be necessary to
comply with the provisions of the Securities Act with respect to the
disposition of all Transfer Restricted Securities covered by such
registration statement;
(d) Use its commercially reasonable efforts to register and
qualify the securities covered by such registration statement under
such other securities or "blue sky" laws of such jurisdictions as shall
be reasonably requested by the Holders, provided that the Company shall
not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of
process in any such states or jurisdictions; and
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering.
Each Holder participating in such underwriting shall also enter into
and perform its obligations under such an agreement.
6. REGISTRATION EXPENSES. Except as set forth in clause (i) of
Section 3(c), the Company shall bear all fees and expenses incurred by it in
connection with the performance of its obligations under Sections 1, 3 and 4
hereof whether or not a Registration Statement is filed or becomes effective. In
connection with any Registration Statement, the participating Holders shall be
responsible for the payment of any and all underwriters' and brokers' and
dealers' discounts, selling commissions, any applicable stock transfer taxes
and, except as set forth in clause (i) of Section 3(c) and as set forth below,
all fees and disbursements of counsel, accountants or other advisors for any
Holder and any other fees and expenses not covered by the preceding sentence. In
connection with the Shelf Registration Statement and the applicable Registration
Statement for one (1) Demand Registration, the Company shall bear or reimburse
the Holders of the Securities covered thereby for reasonable fees and
disbursements of not more than one (1) counsel chosen by the Holders of a
majority in principal amount of the Securities covered thereby to act as counsel
for the Holders in connection therewith. For purposes of this Agreement,
"REGISTRATION STATEMENT" shall mean the Shelf Registration Statement and any
applicable registration statement in connection with Demand and Piggyback
Registrations.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Holder
of the Securities, each agent representative, employee, officer and
director of any such Holder, and each person, if any, who controls such
Holder within the meaning of the Securities Act or the Exchange Act
(each Holder and such persons are referred to collectively as the
"INDEMNIFIED PARTIES") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages,
liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under
the Securities Act, the Exchange Act
Registration Rights Agreement - Page 12
or otherwise, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in
any preliminary prospectus relating to a Registration Statement, or
arise out of, or are based upon, the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall
reimburse, as incurred, the Indemnified Parties for any legal or other
expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action in
respect thereof; PROVIDED, HOWEVER, that (i) the Company shall not be
liable in any such case to the extent that such loss, claim, damage or
liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Registration
Statement in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company by or on behalf
of such Holder specifically for inclusion therein and (ii) with respect
to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus relating to a Registration
Statement, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Holder from whom the person
asserting any such losses, claims, damages or liabilities purchased the
Securities concerned, to the extent that a prospectus relating to such
Securities was required to be delivered by such Holder under the
Securities Act in connection with such purchase and any such loss,
claim, damage or liability of such Holder results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of
the final prospectus if the Company had previously furnished copies
thereof to such Holder; PROVIDED FURTHER, HOWEVER, that this indemnity
agreement will be in addition to any liability which the Company may
otherwise have to such Indemnified Party. The Company shall also
indemnify underwriters, their officers and directors and each person
who controls such underwriters within the meaning of the Securities Act
or the Exchange Act to the same extent as provided above with respect
to the indemnification of the Holders of the Securities if requested by
such Holders.
(b) Each Holder, severally and not jointly, will indemnify and
hold harmless the Company, its officers, directors and each person, if
any, who controls the Company within the meaning of the Securities Act
or the Exchange Act from and against any losses, claims, damages or
liabilities or any actions in respect thereof, to which the Company or
any such controlling person may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any amendment
or supplement thereto or in any preliminary prospectus relating to a
Registration Statement, or arise out of or are based upon the omission
or alleged omission to state therein a material fact necessary to make
the statements therein not misleading, but in each case only to the
extent that the untrue statement or omission or alleged untrue
statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the
Company by or on behalf of such Holder specifically for inclusion
therein; and, subject to the limitation set forth
Registration Rights Agreement - Page 13
immediately preceding this clause, shall reimburse, as incurred, the
Company for any legal or other expenses reasonably incurred by the
Company or any such controlling person in connection with investigating
or defending any loss, claim, damage, liability or action in respect
thereof. This indemnity agreement will be in addition to any liability
which such Holder may otherwise have to the Company or any of its
controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying
party will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof the indemnifying party will
not be liable to such indemnified party under this Section 7 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the
defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder
by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on
any claims that are the subject matter of such action, and does not
include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party. No indemnified
party shall effect any settlement of any pending or threatened action
without the prior written consent of the indemnifying party, which such
consent shall not be unreasonably withheld or delayed.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received
by the indemnifying party or parties on the one hand and the
indemnified party on the other from the sale of the Securities,
pursuant to the Registration Statement, or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities
(or actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined
by
Registration Rights Agreement - Page 14
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company on
the one hand or such Holder or such other indemnified party, as the
case may be, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any action or claim which
is the subject of this subsection (d). Notwithstanding any other
provision of this Section 7(d), the Holders shall not be required to
contribute any amount in excess of the amount by which the net proceeds
received by such Holders from the sale of the Securities pursuant to a
Registration Statement exceeds the amount of damages which such Holders
have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (d), each person, if any, who controls such
indemnified party within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act shall have
the same rights to contribution as the Company.
(e) The agreements contained in this Section 7 shall survive the
sale of the Securities pursuant to a Registration Statement and shall
remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
8. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES.
(a) Additional interest (the "ADDITIONAL INTEREST") with respect
to the Securities (except with respect to (iii) below, which such
Additional Interest shall only apply to the Securities held by the
affected Holder(s)) shall be assessed as follows if any of the
following events occur (each such event in clauses (i) through (v)
below being herein called a "REGISTRATION DEFAULT"):
(i) If on or prior to the 150th day after the Closing Date
(as defined in the Purchase Agreement), the Shelf Registration
Statement has not been filed with the Commission;
(ii) If on or prior to the 220th day after the Closing Date
(as defined in the Purchase Agreement), the Shelf Registration
Statement has not been declared effective by the Commission;
(iii) The Company fails with respect to a Holder of Notes
that supplies the Notice and Questionnaire described in Section
1(d) above to amend or
Registration Rights Agreement - Page 15
supplement the Shelf Registration Statement in the manner
set forth in Section 1(d) above;
(iv) If after the Shelf Registration Statement is declared
effective, such Shelf Registration Statement or the related
prospectus ceases to be usable in connection with resales of
Transfer Restricted Securities during the periods specified
herein because the Company suspends the effectiveness of such
Shelf Registration Statement beyond the periods set forth in
Section 2(h) above;
(v) If after the Shelf Registration Statement is declared
effective, such Registration Statement or the related prospectus
ceases to be usable in connection with resales of Transfer
Restricted Securities during the periods specified herein and the
Company fails to cure the Shelf Registration Statement within
fifteen (15) business days by filing a post-effective amendment
or report pursuant to the Exchange Act;
(vi) If on or prior to the 120th day after the Demand
Initiation Date, a registration statement relating to the
applicable Demand Registration has not been filed with the
Commission; or
(vii) If on or prior to the 180th day after the Demand
Initiation Date, a registration statement relating to the
applicable Demand Registration has not been declared effective by
the Commission.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission.
Additional Interest shall accrue on the Notes and Conversion
Shares that are Transfer Restricted Shares over and above the interest set forth
in the title of the Securities from and including the date on which any such
Registration Default shall occur to but excluding the date on which all such
Registration Defaults have been cured, at a rate of 0.50% per annum (the
"ADDITIONAL INTEREST RATE").
(b) A Registration Default referred to in Section 8(a)(v) hereof
shall be deemed not to have occurred and be continuing in relation to a
Shelf Registration Statement or the related prospectus if (i) such
Registration Default has occurred solely as a result of (x) the filing
of a post-effective amendment to such Shelf Registration Statement to
incorporate annual audited financial information with respect to the
Company where such post-effective amendment is not yet effective and
needs to be declared effective to permit Holders to use the related
prospectus or (y) other material events with respect to the Company
that would need to be described in such Shelf Registration Statement or
the related prospectus and (ii) in the case of clause (y), the Company
is proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related prospectus to describe such
events; PROVIDED, HOWEVER, that in any case if such Registration
Default occurs for a continuous period in excess of 30 days, Additional
Interest shall be payable in accordance with the above
Registration Rights Agreement - Page 16
paragraph from the day such Registration Default occurs until such
Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section
8(a) above will be payable in cash to the "RECORD HOLDER" (as defined
in Section 8(d) below) on the "DAMAGES PAYMENT DATES" (as defined in
Section 8(d) below) with respect to the Notes and the Conversion
Shares. The amount of Additional Interest will be determined by (1)
multiplying the applicable Additional Interest Rate by (x) in the case
of the Notes, the "APPLICABLE PRINCIPAL AMOUNT" (as defined in Section
8(d) below) or (y) in the case of the Conversion Shares, the
"APPLICABLE CONVERSION PRICE" (as defined in Section 8(d) below) and
then (2) multiplying the product of the calculation set forth in (c)(1)
above by a fraction, the numerator of which is the number of days such
Additional Interest Rate was applied during such period (determined on
the basis of a 360 day year comprised of twelve 30-day months), and the
denominator of which is 360.
(d) The following terms shall have the following meaning(s):
The term "APPLICABLE CONVERSION PRICE" means the Applicable
Principal Amount divided by the Conversion Price set forth in the Notes, as
adjusted from time to time pursuant to the Indenture, in effect as of the next
succeeding June 15 or December 15 following such Registration Default in the
case of the first such payment of Additional Interest with respect to a
Registration Default (and thereafter at the next succeeding June 15 or December
15 until the cure of such Registration Default) or, if no Notes are then
outstanding, the last Conversion Price that was in effect when the Notes were
last outstanding.
The term "APPLICABLE PRINCIPAL AMOUNT" with respect to each
$1,000 principal amount of maturity of Notes means the initial issue price of
such Note ($1,000) through the next succeeding June 15 or December 15 following
such Registration Default in the case of such payment of Additional Interest
with respect to a Registration Default (and thereafter at the next succeeding
June 15 or December 15 until the cure of such Registration Default) or, if no
Notes are then outstanding, such sum calculated as if such Notes were then
outstanding.
The term "DAMAGES PAYMENT DATE" means each June 15 or December
15 in the case of the Notes and the Conversion
SHARES.
The term "RECORD HOLDER" means with respect to any Damages
Payment Date relating to any Note or Conversion Shares as to which any
Additional Interest has accrued, the registered holder of such Note or
Conversion Shares, as the case may be, fifteen (15) days prior to the next
succeeding Damages Payment Date.
The term "TRANSFER RESTRICTED SECURITIES" means each Security
until the earliest of (i) the date on which such Security has been effectively
registered under the Securities Act and disposed of in accordance with the Shelf
Registration Statement, (ii) to the extent such Security is held by a
non-affiliate of the Company, the date on which such Security may be sold by the
Holder thereof to the public pursuant to Rule 144 under the Securities Act,
(iii) to the extent such Security is held by an affiliate of the Company, the
date on which such Security is sold by the Holder thereof to the public pursuant
to Rule 144 under the Securities Act or (iv) the date on
Registration Rights Agreement - Page 17
which such Security is saleable by the Holder thereof pursuant to Rule 144(k)
under the Securities Act. Notwithstanding anything herein to the contrary, the
registration rights granted hereunder shall terminate as to each Holder and with
respect to such Securities upon the date that such Securities are no longer
Transfer Restricted Securities.
9. SEC FILINGS. The Company shall use its best efforts to file the
reports required to be filed by it under the Securities Act and the Exchange Act
in a timely manner and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Securities, make publicly
available other information so long as necessary to permit sales of their
securities pursuant to Rule 144. The Company covenants that it will take such
further action as any Holder of Securities may reasonably request, all to the
extent required from time to time to enable such Holder to sell Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144. The Company will provide an executed
counterpart of this Agreement to prospective purchasers of the Notes identified
to the Company by the Purchaser upon request. Upon the request of any Holder of
Notes, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 9 shall be deemed to require the Company to register any
of its securities pursuant to the Exchange Act.
10. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering and such selection shall
be subject to the Company's consent, which shall not be unreasonably withheld or
delayed.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
11. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company will not on or after
the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent or conflicts with the legal rights
granted to the Holders in this Agreement. The rights granted to the
Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date hereof.
Notwithstanding anything herein to the contrary, the Company shall not
be limited or in any way prevented from entering into any agreement
granting any holder or prospective holder of any securities of the
Company registration rights with respect to such securities that do not
conflict with the registration rights of the Holders hereunder.
Registration Rights Agreement - Page 18
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified
or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of the Holders of a majority of the then outstanding
Conversion Shares constituting Transfer Restricted Securities (with
Holders of Notes deemed to be the Holders, for purposes of this Section
11(b), of the number of outstanding shares of Conversion Shares into
which such Notes are or would be convertible or exchangeable as of the
date on which such consent is requested). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof
with respect to a matter that relates exclusively to the rights of
Holders of Transfer Restricted Securities whose securities are being
sold pursuant to a Shelf Registration Statement and that does not
directly or indirectly affect the rights of other Holders of Transfer
Restricted Securities may be given by Holders of at least a majority of
the Transfer Restricted Securities being sold by such Holders pursuant
to such Shelf Registration Statement; PROVIDED, HOWEVER, that the
provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the
immediately preceding sentence; PROVIDED, FURTHER, without the consent
of each Holder, no amendment, modification or supplement may alter the
provisions relating to the payment of Additional Interest. Each Holder
of Transfer Restricted Securities outstanding at the time of any such
amendment, modification, supplement, waiver or consent or thereafter
shall be bound by any such amendment, modification, supplement, waiver
or consent effected pursuant to this Section 11, whether or not any
notice, writing or marking indicating such amendment, modification,
supplement, waiver or consent appears on the Transfer Restricted
Securities or is delivered to such Holder. Each Holder may waive
compliance with respect to any obligation of the Company under this
Agreement as it may apply or be enforced by such particular Holder.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air courier which
guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Purchaser:
Citicorp Mezzanine III, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: General Partner
Registration Rights Agreement - Page 19
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxxxx, Esq.
Zechariah Xxxxxxx Xxxxxxx XX, Esq.
(3) if to the Company, at its address as follows:
ChipPAC, Inc.
00000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxx Xxxxx, Esq.
(for all notices other than Selling Security
Holder Notice and Questionnaire)
Xxxxxxx Xxx, Esq.
Xxxx Xxxx, Esq.
(for all Selling Securityholder Notice
and Questionnaire)
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(d) THIRD PARTY BENEFICIARIES. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on
the one hand, and the Purchaser, on the other hand, and shall have the
right to enforce such agreements directly to the extent they may deem
such enforcement necessary or advisable to protect their rights or the
rights of Holders hereunder.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; PROVIDED,
Registration Rights Agreement - Page 20
HOWEVER, that this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and to the extent
such successor or assign acquired Transfer Restricted Securities from
such Holder; and PROVIDED, FURTHER that nothing herein shall be deemed
to permit any assignment, transfer or any disposition of Transfer
Restricted Securities in violation of the terms of the Purchase
Agreement. If any transferee of any Holder shall acquire Transfer
Restricted Securities, in any manner, whether by operation of law or
otherwise, such Transfer Restricted Securities shall be held subject to
all of the terms of this Agreement and by taking and holding such
Transfer Restricted Securities such person shall be conclusively deemed
to have agreed to be bound by and to perform all of the terms and
provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(i) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(j) SECURITIES HELD BY THE COMPANY. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates
(other than the Purchaser and subsequent Holders of Securities if such
subsequent Holders are deemed to be affiliates solely by reason of
their holdings of such Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such
required percentage.
(k) STANDOFF AGREEMENT. In connection with the public offering of any
of the Company's debt or equity securities, each Holder and its
affiliates (so long as they beneficially own at least five percent (5%)
of the capital stock of the Company) agrees, that upon request of the
Company or the underwriters managing any underwritten offering of the
Company's securities, not to sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise dispose of any Securities
without the prior written consent of the Company or such underwriters,
as the case may be, for such period of time (not to exceed 120 days)
from the effective date of such registration statement as may be
requested by the underwriters; provided that the (i) executive officers
and directors of the Company who own securities of the Company and (ii)
holders of five percent (5%) or more of the capital stock of the
Company also agree to such restrictions.
Signature Page to Registration Rights Agreement
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Purchaser and the Company in accordance with its terms.
Very truly yours,
CHIPPAC, INC.
By: /s/ XXXXXX X. XxXXXXX
-------------------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Chairman of the Board, President and
Chief Executive Officer
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CITICORP MEZZANINE III, L.P.
By: Citicorp Capital Investors, Limited, its general partner
By: /s/ XXXXX X. XXXXX
----------------------------------
Name: Xxxxx X. Xxxxx
Title: President
ANNEX A
CHIPPAC, INC.
QUESTIONNAIRE FOR BENEFICIAL OWNERS REGARDING
SECURITIES TO BE INCLUDED IN SHELF REGISTRATION STATEMENT
The following questions (the "QUESTIONNAIRE") elicit information to
prepare (i) the Registration Statement on Form S-3 (the "SHELF REGISTRATION
STATEMENT") registering for resale the Company's 8% Convertible Subordinated
Notes due 2011 (the "NOTES"), on behalf of the beneficial owners thereof, and
the Class A Common Stock, par value, $0.01 per share, of the Company (the
"COMMON STOCK") issuable upon conversion of the Notes (the "NOTES STOCK")
(collectively, the "SECURITIES"), filed by ChipPAC, Inc. (the "COMPANY") with
the Securities Exchange Commission in accordance with the rights granted to you
and the other holders of Notes and/or Notes Stock (collectively, "SELLING
SECURITYHOLDERS") pursuant to the Registration Rights Agreement, dated June 22,
2001, by and between the Company and the purchaser party thereto (the
"REGISTRATION RIGHTS AGREEMENT") and (ii) other securities documents which may
be required in connection with the Shelf Registration Statement. By electing to
sell the Securities pursuant to the Shelf Registration Statement you agree to be
bound by the terms of the Registration Rights Agreement.
Because the information provided in this Questionnaire will be used in
connection with the preparation of documents to be filed with state and federal
agencies, it should be accurate, complete and true, and not omit any material or
important information.
By execution of this Questionnaire, you agree to notify the Company's
legal counsel as promptly as practicable of any inaccuracy or change in
information previously furnished by you to the Company or the occurrence of any
event in either case as a result of which any Prospectus included in such Shelf
Registration Statement contains or would contain an untrue statement of a
material fact regarding you or your intended method of distribution of such
Securities necessary to make the statements therein, in light of the
circumstances then existing, not misleading, and you agree promptly to furnish
to the Company's legal counsel any additional information required to correct
and update any previously furnished information or required so that such
Prospectus shall not contain, with respect to you or the distribution of
Securities held by you that are included in the Shelf Registration Statement, an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances then existing, not
misleading.
Each beneficial owner of the Notes is being furnished with two copies
of this Questionnaire. Please complete and execute one copy and return it to the
Company's legal counsel, Xxxxxxxx & Xxxxx, 000 Xxxxx Xxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxxxxx, XX 00000, Attention: Xxxxxxx Xxx and Xxxx Xxxx, on or before
the date of the initial issuance of the Notes (the "CLOSING DATE"). By executing
this Questionnaire, you hereby consent to being named in the Shelf Registration
Statement and to the presentation of all information furnished herein which is
required to be disclosed in the Shelf Registration Statement.
PURSUANT TO THE TERMS OF THE REGISTRATION RIGHTS AGREEMENT, YOU ARE
OBLIGATED TO INDEMNIFY THE COMPANY IF THE INFORMATION YOU PROVIDE HEREIN IS
INACCURATE OR MISLEADING.
SECURITIES WILL NOT BE INCLUDED IN THE SHELF REGISTRATION STATEMENT
UNLESS YOU COMPLETE THIS QUESTIONNAIRE, SIGN IT AND DELIVER A COPY TO THE
COMPANY'S LEGAL COUNSEL IN THE MANNER DESCRIBED HEREIN AND PROMPTLY NOTIFY THE
COMPANY'S LEGAL COUNSEL OF ANY CHANGES TO THE INFORMATION CONTAINED HEREIN.
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INSTRUCTIONS FOR COMPLETION OF QUESTIONNAIRE:
Please answer each question fully. Give the most exact and accurate
answers possible. If your response to any of the questions presented below is
negative or if any of the questions are not applicable, please so state in the
space provided. Please sign and date the Questionnaire. Certain terms used
herein are defined in Appendix A hereto, which should be referred to in
completing this Questionnaire.
1. GENERAL
State your full name as it should appear in any filings made.
NAME OF SELLING SECURITYHOLDER: ________________________________________________
SOCIAL SECURITY NUMBER OR FEDERAL EMPLOYER I.D. NUMBER: ________________________
BUSINESS ADDRESS: ______________________________________________________________
RESIDENCE ADDRESS: _________________________________________________ ___________
TELEPHONE NUMBER: ________________________________________________ _____________
Business: ___________________________________
Fax: ________________________________________
If an entity, please indicate principal contact for questions:
NAME: ______________________________________
ADDRESS: ___________________________________
TELEPHONE NUMBER: __________________________
FAX NUMBER: ________________________________
2. Please describe the nature of the business you or your organization
conducts.
3. Please state your current position, office or other relationship with
the Company (or its predecessors or affiliates) and any position,
office or other relationship with the Company (or its predecessors or
affiliates) during the past three years.
4. If you hold any or all of the Notes or Notes Stock on behalf of another
person or entity, please state the full name(s) and address(es) of such
person(s) or entity(ies) and the amount(s) so held.
5. Check the box which represents the CUSIP Number of the Notes that you
hold.
|| 144A Global Note; CUSIP Number:
|| ________________________________
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6. Please state the amount of Notes and/or Notes Stock owned of record by
you.
Notes: ________________________________
Notes Stock: _________________________
7. Please state the amount of Notes and/or Notes Stock for which you are
the beneficial owner and the record owner.
Notes: ________________________________
Notes Stock: _________________________
8. Please state the amount of Notes and Notes Stock for which you are the
beneficial owner, but not the record owner.
Notes: ________________________________
Notes Stock: _________________________
Please include the name and address of the record owner and your relationship to
the record owner.
Notes: ________________________________
Notes Stock: _________________________
9. If any other person or entity shares voting or investment power with
you with respect to the Notes or Notes Stock listed in questions 6, 7
and 8 above, please
a. briefly identify the person or entity,
b. give the principal amount or number subject to shared voting power
or investment power and
c. summarize the arrangement.
10. Are any of the Notes or Notes Stock owned by you subject to any pledge
or other contractual arrangement?
No ____Yes ____
If yes, please explain such pledge or other contractual arrangement.
11. Please describe any other rights to purchase Notes or Notes Stock that
you have.
12. Please state the amount of Notes and Notes Stock to be offered for your
account in the Shelf Registration Statement.
Notes: ________________________________
Notes Stock: _________________________
13. Have you entered into any agreement, arrangement or understanding with
a broker or dealer with respect to the offering of the Notes or Notes
Stock to be registered in the Shelf Registration Statement?
No ____Yes ____
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If yes, please set forth the terms of any such agreement, arrangement
or understanding (including without limitation volume limitations on sales,
parties to the agreement, arrangement or understanding and conditions under
which the agreement, arrangement or understanding may be terminated) below.
14. Identify any broker(s) or dealer(s) participating in the offering of
Notes or Notes Stock to be offered for your account and state the
amount of Notes and Notes Stock to be offered by each such broker.
15. Set forth below any discounts or commissions, if any, to be allowed or
paid to dealers in connection with the sale of the Notes or Notes Stock
to be offered for your account.
16. Identify any finder known to you to be involved with the distribution
of the Notes or Notes Stock to be offered for your account and, if
applicable, the finder's relationship with the Company or its officers,
directors, principal shareholders, finders or promoters.
17. Attached as Appendix B hereto is a description of a plan of
distribution that is intended to be used, in substantially the form of
Appendix B, in the Shelf Registration Statement. Please indicate
whether anything stated in Appendix B is inaccurate or misleading with
respect to your plan to distribute the Notes and Note Stock owned by
you or whether Appendix B omits to state any information about your
plan of distribution.
No ___Yes ____
If yes, describe below specifically in what manner Appendix B is
inaccurate or misleading, Please also describe below any additional information
about your plan to distribute the Notes and Notes Stock that you own.
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CERTIFICATION
The information set forth above is supplied by the undersigned in
response to the request of the Company and may be used in connection with the
Shelf Registration Statement. The undersigned hereby affirms that such
information is correct as of the date hereof. The undersigned will promptly
notify the Company's legal counsel of any changes in such information, whether
such change occurred subsequent hereto and prior to the filing or effectiveness
of the Shelf Registration Statement or after the Shelf Registration Statement is
filed or becomes effective. The undersigned understands and agrees that this
Questionnaire, as completed by him or her, and any further communications by him
or her regarding the matters contemplated herein, will be relied upon by the
Company, its legal counsel, and the representatives of any underwriters and
their counsel, in connection with filings related to the Shelf Registration
Statement.
The undersigned understands that material misstatements or the omission
of material facts in the Shelf Registration Statement may give rise to civil and
criminal liabilities for the Company, each officer and director of the Company
signing the Shelf Registration Statement and other persons signing such
document.
Signature of Holder(1) _________________________________________
Please type or print name and title, if any: ___________________
Date: _______________
RETURN COMPLETED QUESTIONNAIRE ON OR BEFORE THE CLOSING DATE TO:
XXXXXXX XXX, ESQ.
XXXX XXXX, ESQ.
XXXXXXXX & XXXXX
000 XXXXX XXXXXXXX XXXXXX
00XX XXXXX
XXX XXXXXXX, XXXXXXXXXX 00000
FAX: (000) 000-0000
----------------------
(1) If this Questionnaire is being completed by or on behalf of a person other
than an individual, the entity on whose behalf the Questionnaire is being
completed should be stated.
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APPENDIX A
1. ARRANGEMENT. Any plan, contract, arrangement or understanding,
whether or not set forth in a formal document.
2. ASSOCIATE. The term "associate" means:
(a) Any corporation or organization, except the Company and
its majority-owned subsidiaries, of which you are an executive officer
or partner or of which you, together with other officers or directors
of the Company, are, directly or indirectly, the beneficial owner of
10% or more of any class of equity securities.
(b) Any trust or other estate in which you have a substantial
beneficial interest or as to which you serve as trustee or in a similar
fiduciary capacity.
(c) Any relative, your spouse or any relative of your spouse
who resides with you or who is a director or officer of the Company or
its subsidiaries.
3. BENEFICIAL OWNER. A "beneficial owner" of securities is
any person who, directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise has or shares:
(a) Voting power, which includes the power to vote, or to
direct the voting of, such security; and/or,
(b) Investment power, which includes the power to dispose or
direct the disposition of, such security.
Furthermore, a "beneficial owner" of a security includes any person who
has the right to acquire beneficial ownership of such security at any time
within sixty (60) days. The right to acquire beneficial ownership could (but
need not necessarily) be through (i) the exercise of any option, warrant or
right, (ii) the conversion of a security, (iii) a power to revoke or automatic
termination of a trust, discretionary account, or similar arrangement, or (iv)
otherwise.
A "beneficial owner" also includes any person who, directly or
indirectly, creates or uses a trust, proxy, power of attorney, pooling
arrangement or any other contract, arrangement or device with the purpose or
effect of divesting such person of beneficial ownership of a security or
preventing the vesting of such beneficial ownership as part of a plan to evade
the reporting requirements of any federal or state securities act.
Securities owned beneficially would include not only securities held by
you for your own benefit, whether in bearer form or registered in your own name
or otherwise, but would also include securities held by others for your benefit
or securities from which you obtain benefits substantially equivalent to those
of ownership (regardless of whether or how they are registered), such as, for
example, securities held for you by banks or other custodians, brokers (whether
in your name, their name or in "street name"), executors, administrators, or
trustees (including trusts in which you have only a remainder interest) and
securities held for your account by pledgees, and securities owned by a
partnership in which you are a member, and securities owned by any corporation
in which you and your associates own 10% or more of the stock. A person is
deemed to be the beneficial owner of securities beneficially owned by his
spouse, his minor children, or any relative sharing his home.
"Indirectly," when used to refer to beneficial ownership of securities,
means ownership through another such as a controlled corporation, member of the
family, estate, trust, partnership or other entity.
Appendix A
