EXHIBIT 10.80
Form of Offshore Securities Subscription Agreement dated October 22, 1996 by and
among MPI, Purchaser and Xxxxxxx Xxxxxxxxxx Xxxxxx Xxxxx & Xxxxx.
OFFSHORE SECURITIES SUBSCRIPTION AGREEMENT
THE CONVERTIBLE DEBENTURES ISSUED AND SOLD PURSUANT TO THIS SUBSCRIPTION
AGREEMENT AND THE SHARES OF COMMON STOCK UNDERLYING SUCH INSTRUMENTS HAVE NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") OR UNDER THE LAWS OF ANY OTHER JURISDICTION, IN RELIANCE UPON REGULATION
S UNDER THE ACT. UNTIL THE FORTY-FIFTH (45/TH/) DAY AFTER THE SALE OF THE
CONVERTIBLE DEBENTURES, THE WARRANT AND THE SHARES OF COMMON STOCK UNDERLYING
EACH PURSUANT TO REGULATION S IS COMPLETED, NO CONVERTIBLE DEBENTURE, WARRANT OR
SHARES UNDERLYING SUCH SECURITIES MAY BE OFFERED, SOLD OR TRANSFERRED (INCLUDING
ANY INTERESTS THEREIN) IN THE UNITED STATES OR TO A "U.S. PERSON" (AS DEFINED IN
REGULATION S PROMULGATED UNDER THE ACT) OR FOR THE ACCOUNT OR BENEFIT OF ANY
U.S. PERSON, EXCEPT AS PROVIDED IN SAID REGULATION S. ANY RESALE THEREAFTER
MUST BE PURSUANT TO REGISTRATION UNDER THE ACT OR AN AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE ACT. NEITHER MICROELECTRONIC PACKAGING,
INC. ("MPI") NOR ITS TRANSFER AGENT SHALL BE OBLIGATED TO REMOVE ANY LEGEND ON
CERTIFICATES REPRESENTING SUCH SECURITIES UNLESS IT SHALL HAVE RECEIVED AN
OPINION OF COUNSEL TO THE HOLDER OF THE CONVERTIBLE DEBENTURE, THE WARRANT OR
THE SHARES OF COMMON STOCK UNDERLYING SUCH SECURITIES REASONABLY SATISFACTORY TO
MPI AND ITS TRANSFER AGENT STATING THAT SUCH REMOVAL COMPLIES WITH THE
REQUIREMENTS OF REGULATION S.
THIS AGREEMENT is made as of the __ day of October, 1996, by and among
Microelectronic Packaging, Inc., a California corporation (the "Company"),
_________________________________ (the "Purchaser"), a corporation organized
under the laws of ____________________ and Xxxxxxx Xxxxxxxxxx Xxxxxx Xxxxx &
Xxxxx ("Escrow Agent"). Unless otherwise defined herein, capitalized terms used
herein and not otherwise defined shall have the meanings given to them in
Regulation S ("Regulation S") promulgated under the Act.
WITNESSETH:
WHEREAS, in reliance upon the respective representations and warranties of
the Company and Purchaser, and the terms and conditions hereinafter set forth,
the Purchaser desires to acquire, and the Company desires to issue, $___________
principal amount of the Company's 8% Convertible Debentures due October ____,
1997 convertible into shares of common stock of the Company, no par value
("Common Stock"), at a conversion price and on such terms as set forth in
Exhibit "A" (the "Debentures") at a purchase price of U.S.___________ (U.S.
$_______) (the "Purchase Price"); and
WHEREAS Dusseldorf Securities Limited ("Dusseldorf"), one of the investors
will be issued, in exchange for certain placement services provided by Purchaser
to the Company, a warrant (the "Warrant") to purchase 75,421 shares of the
Company's Common Stock exercisable from forty-five (45) days after the date
hereof to one (1) year after the date hereof at an exercise price and on such
terms as set forth in Exhibit "B". The shares of Company Common Stock issuable
upon conversion of the Debentures or upon exercise of the Warrant are referred
to herein as the "Shares."
NOW, THEREFORE, in consideration of the premises and the respective
covenants hereinafter set forth, the Company, Purchaser and Escrow Agent hereby
agree as follows:
1. SALE AND PURCHASE OF SECURITIES.
1.1 The Company agrees to sell to Purchaser and Purchaser hereby agrees to
purchase from the Company the Debentures set forth above. Such sale and
purchase shall take place upon payment of the Purchase Price for the Debentures
by electronic transfer of immediately available funds to the Escrow Agent as
follows:
Name of Account: Xxxxxxx Xxxxxxxxxx Xxxxxx Xxxxx & Xxxxx, XXXX Account,
Bank: Chase Manhattan Bank
ABA No. 021-000021
Account No. 128074204665.
The Company hereby acknowledges that it has been advised by the Escrow
Agent that the Escrow Agent is representing Dusseldorf in the transaction
contemplated by this Agreement but is acting herein solely as an Escrow Agent.
1.2 At the closing (the "Closing"), the Company shall deliver the
Debentures and the Warrant to the Escrow Agent. Upon delivery of the Debentures
and Warrant, immediately available funds representing the Purchase Price shall
be wire transferred by the Escrow Agent to a bank account or bank accounts
specified by the Company. The Escrow Agent shall then deliver the Debentures to
the Purchaser in accordance with the Purchaser's instructions and the Warrant to
Dusseldorf in accordance with Dusseldorf's instructions.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
To the Company's knowledge, which for purposes of this Section 2. shall
include all of its subsidiaries on a consolidated basis, except as set forth in
the attached Schedule of Exceptions, the Company hereby represents, warrants and
covenants to Purchaser that as of the date hereof and at the Closing:
2.1 The Company has been duly organized, is validly existing and is in
good standing under the laws of the State of California.
2.2 The Company has full corporate right, power and authority to enter
into this Agreement, perform its obligations hereunder and to sell the
Debentures to the Purchaser.
2.3 Except as otherwise set forth herein or as otherwise disclosed in
writing and in the Company's public filings under the Act and the Securities
Exchange Act of 1934, as amended (the
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"Exchange Act") (collectively the "Disclosure Documents"), the Company knows of
no fact or circumstance with respect to the Company, its officers or directors
that is reasonably likely to have a material adverse effect on its operations,
properties, assets, or condition, financial or otherwise.
2.4 The Company's common stock is registered pursuant to Section 12(b) of
the Exchange Act.
2.5 The Company is, to the best of its knowledge and belief, in compliance
in all material respects with all applicable laws and regulations of federal,
state and local government agencies having jurisdiction over it other than non-
compliance that would not have a material adverse effect on the Company.
2.6 If the Debentures are converted into Shares, the Shares, when issued,
will be duly authorized, validly issued, fully paid and non-assessable. Upon
delivery to Purchaser of the Shares pursuant to the provisions of this
Agreement, Purchaser will acquire valid title in said Shares, free and clear of
all liens, encumbrances, restrictions, claims and commitments of every kind,
except for restrictions arising under federal, state, local and foreign
securities laws or as set forth in this Agreement and the Debenture.
2.7 Neither the execution or delivery of this Agreement nor the
performance by the Company of the transactions contemplated herein violates any
provision of law applicable to the Company or conflicts with or will result in a
breach or termination of any provision of, or constitutes a default, or will
result in the creation of any lien, charge or encumbrance upon any of the
property or assets of the Company under the Company's Articles of Incorporation
(subject to the total authorized number of shares of Common Stock therein and
any increase in such authorized number as may be necessary to provide for the
conversion of the Debentures) or By-Laws, mortgage, deed of trust, indenture or
other material agreement or instrument, or any order, judgment, decree, statute,
regulation or any other restriction of any governmental authority to which the
Company is a party or by which any of the assets of the Company may be bound
with or without the giving of notice, the passage of time or both, except with
respect to applicable laws affecting creditors' rights.
2.8 (i) The Company is a Reporting Issuer. The Company is in full
compliance, to the extent applicable, with all reporting obligations under
Section 13(a) or 15(d) of the Exchange Act.
(ii) The Company has not offered the Debentures or the Shares to any
person in the United States or to any identifiable groups of U.S. citizens
abroad or to any U.S. Person.
(iii) In regard to this transaction, the Company has not, nor to its
knowledge has any affiliate or person acting on behalf of itself or the Company,
conducted any Directed Selling Efforts in the United States nor has the Company
conducted any
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general solicitation relating to the offer and sale of the Debentures or the
Shares to persons resident within the United States or elsewhere.
(iv) The Company will not offer to sell any other securities of the
Company in connection with this offering other than debentures, shares and the
warrant that are being sold substantially concurrently herewith.
(v) The sale of the Debentures and the Shares are not part of a plan
or scheme to evade the registration requirements of the Act. The Company
believes that the Purchase Price is reasonable after consideration of the
applicable restricted period under Regulation S, the historical volatility of
the market price of the Common Stock of the Company, the current financial
condition of the Company, the dilution represented by the sale of the
Debentures, the Warrant, the Shares and any other sales of debentures, warrant
or shares of the Common Stock of the Company occurring concurrently herewith,
current stock market conditions and other relevant information concerning the
Company.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER.
The Purchaser hereby represents, warrants and covenants to the Company that
as of the date hereof and at the Closing:
3.1 It understands and acknowledges that the Debentures and the Shares
acquired pursuant to this Agreement have not been and will not be registered
under the Act, and are being sold in reliance upon an exemption from
registration afforded by Regulation S promulgated under the Act; and that the
Debentures and the Shares have not been registered with, passed on, reviewed or
recommended by any state or foreign securities commission or authority. The
Purchaser: (i) will not, during the applicable restricted period under
Regulation S (the "Restricted Period"), offer, sell, pledge or otherwise
transfer the Debentures or the Shares (or create or maintain any derivative
position equivalent thereto) in the United States, or to a U.S. Person or for
the account or benefit of a U.S. Person; (ii) will, during the Restricted
Period, offer, sell, pledge or otherwise transfer the Debentures or the Shares
only in accordance with Rules 903 or 904 of Regulation S under the Act, pursuant
to registration under the Act or pursuant to another available exemption from
the registration requirements of the Act (and based upon an opinion of counsel
to such Purchaser which is reasonably satisfactory to the Company), and in
accordance with all applicable federal, state and foreign securities laws; and
(iii) will, after the expiration of the Restricted Period, offer, sell, pledge
or otherwise transfer the Debentures and the Shares (or create or maintain any
derivative position equivalent thereto) only pursuant to registration under the
Act or an available exemption therefrom (and based upon an opinion of counsel to
such Purchaser which is reasonably satisfactory to the Company) and, in any
case, in accordance with all applicable federal, state and foreign securities
laws. The Company will not honor or register and will not be obligated to honor
or register any transfer in violation of
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these provisions.
3.2 (i) It is not a U.S. Person and is not acquiring the Debentures or
the Shares for the account or benefit of any U.S. Person; (ii) if a corporation,
it is not organized or incorporated under the laws of the United States; (iii)
if a corporation, no director or executive officer is a national or citizen of
the United States; and (iv) it is not otherwise deemed to be a U.S. Person.
3.3 It was not formed specifically for the purpose of acquiring the
Debentures or the Shares purchased pursuant to this Agreement. At the time the
offer and buy orders for the Debentures were originated, including, without
limitation, at the time Purchaser executed and delivered this Agreement and
otherwise subscribed for or agreed to purchase the Debentures, Purchaser was
located outside the United States. The transactions contemplated by this
Agreement have not been pre-arranged with a buyer located in the United States
or with a U.S. Person, and are not part of a plan or scheme on the part of
Purchaser, any of its affiliates or any person acting on its or their behalf, to
evade the registration requirements of the Act.
3.4 It acknowledges that it has, either alone and/or through its agents,
been afforded access to all material information concerning the Company and has
received responses to all questions specifically posed to the Company relevant
to Purchaser's decision to acquire the Debentures and the Shares. Without
limiting the foregoing, it has alone and/or through its agents, had adequate
opportunity to ask questions of and receive answers from, responsible officers
and/or directors of the Company and to conduct any other investigation it deems
necessary and appropriate concerning the acquisition of the Debentures and the
Shares. Except as set forth herein, the Company has made no representations or
warranties to Purchaser which have induced, persuaded or stimulated it to
subscribe for and acquire the Debentures and Shares hereunder.
3.5 It has received, or the Company has made available, copies of the
following documents (the "Disclosure Documents"): The Company's Form 10-K for
the year ended December 31, 1995 as filed with the Securities and Exchange
Commission, the Proxy Statement for Annual Meeting of Shareholders dated May 29,
1996 and its quarterly report on Form 10-Q for the quarter ended June 30, 1996
and the Company has made available to the Purchaser all other public documents
filed with the Commission.
3.6 It acknowledges that the Company is relying upon the truth and
accuracy of the representations, warranties and covenants of Purchaser made
herein in selling the Debentures and the Shares hereunder without registration
and in reliance upon Regulation S promulgated under the Act. It is familiar
with Regulation S and has consulted with legal counsel familiar with Regulation
S in connection with this transaction.
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3.7 Purchaser has been duly organized, is validly existing and is in good
standing under the laws of the jurisdiction set forth above, was not formed for
the express purpose of acquiring the Debentures or the Shares, and if a
corporation, all corporate action on its part, necessary for the authorization,
execution, delivery and performance of Purchaser's obligations under this
Agreement has been or shall be taken prior to the closing of this transaction,
and this Agreement, when executed and delivered, shall constitute a valid and
legally binding obligation of the Purchaser enforceable against Purchaser in
accordance with its terms.
3.8 It is purchasing the Debentures and the Shares for its own account,
not with a view to any distribution thereof and not for the account or benefit
of a U.S. Person, and no other person has any interest in or participation in
the Debentures and the Shares or any right, option, security interest, pledge or
other interest in or to the Debentures or the Shares. It understands,
acknowledges and agrees it must bear the economic risk of its investment in the
Debentures and the Shares for an indefinite period of time and that prior to any
offer or sale of such securities, the Company may require, as a condition to
effecting a transfer of the Debentures or the Shares, an opinion of counsel to
Purchaser, acceptable to the Company, as to the registration or exemption
therefrom under the Act. It also understands that the Company is under no
obligation to register the Debentures or Shares on behalf of Purchaser or to
assist it in complying with any exemption from registration except as provided
herein.
3.9 Neither the Purchaser nor any affiliate of the Purchaser or any person
acting on its or their behalf, has made or is aware of any or will make any
Directed Selling Efforts in the United States or any activity undertaken for the
purpose of, or that could reasonably be expected to have the effect of,
conditioning the market in the United States for any of the securities being
purchased hereby. Purchaser and its affiliates and agents have complied and
will comply with the Offering Restrictions requirements of Regulation S in
making offers and sales of the Debentures or Shares.
3.10 Except as set forth in the Agreement or otherwise in writing, no
representations or warranties have been made to the Purchaser by the Company,
the officers or directors of the Company, or any agent, employee or affiliate of
any of them, and in entering into this transaction the Purchaser is not relying
upon any other information other than the results of its own independent
investigation. The Purchaser, in making its decision to purchase the Debentures
and the Shares has relied upon independent investigations made by it and has not
relied on any information or representations made by third parties and the
Purchaser believes that the Purchase Price is reasonably related to the
Restricted Period, the historical volatility of the market price of the Common
Stock of the Company, the current financial condition of the Company, the
dilution represented by the sale of the Debentures, the Warrant, the Shares and
any other sales of debentures, warrants or shares of the Common Stock of the
Company occurring concurrently
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herewith, current stock market conditions and other relevant information
concerning the Company. The Purchaser acknowledges that it is a sophisticated
investor, that it has invested in other Regulation S transactions by other
issuers, and that an investment in the Debentures and the Shares involves a high
degree of risk.
3.11 If the Purchaser is a corporation or trust or other entity, the
officer or trustee or other person executing this Agreement represents and
warrants that he or she is duly authorized to so sign this Agreement and to
consummate the transactions contemplated hereby and that Purchaser is authorized
by its governing documents to make this investment. Purchaser has such knowledge
and experience in financial and business matters that it is capable of
evaluating the merits and risks of an investment in the Debentures and the
Shares, and it is able to bear the economic risk of losing up to the entire
amount of its investment therein.
3.12 It consents to the Company placing an appropriate stop transfer order
against the certificate(s) representing the Debentures or the Shares underlying
the Debentures and acknowledges that such certificate(s) will bear legends in
substantially the following form:
THIS CONVERTIBLE DEBENTURE AND THE UNDERLYING SHARES OF COMMON STOCK
HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "ACT") OR UNDER THE LAWS OF ANY OTHER
JURISDICTION, IN RELIANCE UPON REGULATION S UNDER THE ACT. UNTIL THE
FORTY-FIFTH (45TH) DAY AFTER THE SALE OF THIS CONVERTIBLE DEBENTURE
PURSUANT TO REGULATION S IS COMPLETED, NO CONVERTIBLE DEBENTURE OR
UNDERLYING SHARES MAY BE OFFERED, SOLD OR TRANSFERRED (INCLUDING ANY
INTERESTS THEREIN) IN THE UNITED STATES OR TO A "U.S. PERSON" (AS
DEFINED IN REGULATION S PROMULGATED UNDER THE ACT) OR FOR THE ACCOUNT
OR BENEFIT OF ANY U.S. PERSON, EXCEPT AS PROVIDED IN SAID REGULATION
S. ANY RESALE THEREAFTER MUST BE PURSUANT TO REGISTRATION UNDER THE
ACT OR AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT. NEITHER MICROELECTRONIC PACKAGING, INC. ("MPI") NOR ITS
TRANSFER AGENT SHALL BE OBLIGATED TO REMOVE THIS LEGEND UNLESS IT
SHALL HAVE RECEIVED AN OPINION OF COUNSEL TO THE HOLDER HEREBY
REASONABLY SATISFACTORY TO MPI AND ITS TRANSFER AGENT STATING THAT
SUCH REMOVAL COMPLIES WITH THE REQUIREMENTS OF REGULATION S.
3.13 Neither the Purchaser nor any of its affiliates directly or
indirectly have within the past ninety (90) days nor will such persons for a
period of 45 days from the Closing directly or indirectly enter into any short
selling of any equity security of the Company (including, without limitation,
the Common Stock) or any hedging transaction with respect to any equity security
of the Company, including without limitation, puts, calls, or other option
transactions, option writing and equity swaps.
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4. APPOINTMENT OF ESCROW AGENT.
4.1 The Company and Purchaser hereby appoint the Escrow Agent and the
Escrow Agent hereby accepts its appointment as Escrow Agent pursuant to the
terms and conditions hereinafter set forth.
4.2 The Company shall issue the Debentures and the Warrant with the
appropriate Regulation S legend thereon, in the name of the Purchaser, and
deliver the Debentures and the Warrant to the Escrow Agent. Escrow Agent shall
hold the Debentures and the Warrant until it receives, by wire transfer as
hereinbefore set forth, the Purchase Price. Upon receipt of the Purchase Price,
Escrow Agent shall disburse the Purchase Price in accordance with instructions
it receives from the Company. Escrow Agent shall simultaneously therewith,
deliver the Debentures to the Purchaser pursuant to the Purchaser's instructions
and the Warrant to Dusseldorf.
4.3 It is understood and agreed by the parties to this Agreement as
follows:
(a) The Escrow Agent is not and shall not be deemed to be a trustee
for any party for any purpose and is merely acting as a depository and in a
ministerial capacity hereunder with the limited duties herein prescribed.
(b) The Escrow Agent does not have and shall not be deemed to have
any responsibility in respect of any instruction, certificate or notice
delivered to it other than faithfully to carry out the obligations undertaken in
this Agreement and to follow the directions in such instruction or notice
provided in accordance with the terms hereof.
(c) The Escrow Agent is not and shall not be deemed to be liable for
any action taken or omitted by it in good faith and may rely upon, and act in
accordance with, the advice of its counsel without liability on its part for any
action taken or omitted in accordance with such advice. In any event, its
liability hereunder shall be limited to liability for gross negligence, willful
misconduct or bad faith on its part.
(d) The Escrow Agent may conclusively rely upon and act in accordance
with any certificate, instruction notice, letter, telegram, cablegram or other
written instrument believed by it to be genuine and signed by the Company and
Purchaser.
(e) The Company and Purchaser agree to hold harmless, indemnify and
defend the Escrow Agent for, from and against any loss, damage, liability,
judgment, cost and expense whatsoever, including attorney's fees, suffered or
incurred by it by reason of, or on account of, any misrepresentation made to it
or as to its status or activities as Escrow Agent under this Agreement except
for any loss, damage, liability, judgment, cost or expense resulting from gross
negligence, willful misconduct or bad faith on the part of the Escrow Agent.
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(f) The Escrow Agent shall not be required to defend any legal
proceeding which may be instituted against it in respect of the subject matter
of this Agreement. If any such legal proceeding is instituted against it, the
Escrow Agent agrees promptly to give notice of such proceeding to the Company
and Purchaser. The Escrow Agent shall not be required to institute legal
proceedings of any kind.
(g) The Escrow Agent shall not, by act, delay, omission or otherwise,
be deemed to have waived any right or remedy it may have either under this
Agreement or generally, unless such waiver be in writing, and no waiver shall be
valid unless it is in writing, signed by the Escrow Agent, and only to the
extent expressly therein set forth. A waiver by the Escrow Agent under the
terms of this Agreement shall not be construed as a bar to, or waiver of, the
same or any other such right or remedy which it would otherwise have on any
other occasion.
(h) The Escrow Agent may refrain from taking any action other than
keeping all property held by it in escrow if it is uncertain concerning its
duties or rights under this Escrow Agreement or receives claims or demands from
any person or entity or receives a final judgment by a court of competent
jurisdiction if it deems that necessary or advisable.
5. MISCELLANEOUS.
-------------
5.1 This Agreement supersedes the letter of intent between the Company and
Dusseldorf dated as of October 2, 1996. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties hereto. Nothing in this Agreement,
express or implied is intended to confer upon any party, other than the parties
hereto, and their respective successors and assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided herein.
5.2 Any notice under the provisions of this Agreement shall be given in
writing and delivered by hand, overnight courier or messenger service, against
signed receipt or acknowledgment of receipt, or by registered or certified mail,
return receipt requested, or telecopier or similar means of communication if
receipt is confirmed or if transmission is confirmed by mail as provided in this
paragraph 5.2, to the Purchaser at its address and/or its telecopier number set
forth on the signature page hereof, or to the Company at its address and/or its
telecopier number set forth on the signature page hereof, or to the Escrow Agent
at its address and/or its telecopier number set forth on the signature page
hereof. Any party may, by like notice, change the address to which notice
should be given. This Agreement and the Debentures may be executed by the
parties hereto by exchange of signatures by telecopier or similar means in the
manner provided herein.
5.3 This Agreement shall be governed by and construed in
9
accordance with the laws of the State of California.
5.4 This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
5.5 The warranties and representations of the Company and the Purchaser
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the closing hereunder.
5.6 The Company agrees to compensate Dusseldorf for placement services in
connection with the transactions contemplated hereby by (i) issuing the Warrant
to Dusseldorf; and (ii) paying a cash fee equal to 11.5% of the Purchase Price
($322,000), such cash fee to be paid out of the escrow at closing.
5.7 The Company represents and warrants that it is not at present engaged
in any new discussion or negotiation with respect to the sale or placement of
any of the Company's equity securities pursuant to Regulation S or D and will
not sell or place any of its equity securities pursuant to Regulation S or
Regulation D at a discount to the market price of the Company's Common Stock as
quoted by NASDAQ with any party other than Purchaser until Dusseldorf has
converted all of its Debentures to Common Stock or March 31, 1997, whichever
first occurs, unless agreed to otherwise by Dusseldorf.
5.8 In the event that the Securities and Exchange Commission amends
Regulation S under the Act to increase the 40-day restricted period under
Regulation S (the "Amendment"), the Amendment is effective within 45 days of the
date hereof, and the Amendment extends the holding period applicable to the
Shares underlying the Debentures held by the Purchaser then, upon receipt of a
written request by the Company from the Purchaser to effect registration of the
Shares, the Company shall, subject to the limitations set forth below, within
sixty (60) days, use reasonable efforts to file a registration statement
covering all Shares that the Purchaser has requested to be registered. The
Company shall not be obligated to effect, or take any action to effect, any such
registration under this section 5.8 if (i) in the good faith judgment of the
Board of Directors of the Company such registration would adversely affect the
Company and the Board of Directors concludes, as a result, that it is essential
to defer the filing of such registration statement at such time, and (ii) the
Company shall furnish to the Purchaser a certificate signed by the President or
the Chief Executive Officer of the Company stating that in the good faith
judgment of the Board of Directors of the Company, it would adversely affect the
Company for such registration statement to be filed in the near future and that
it is, therefore, essential to defer the filing of such registration statement,
then the Company shall have the right to defer such filing for the period during
which such filing would adversely affect the Company, provided that the Company
may not defer the filing for a period of more than one hundred and eighty (180)
days after the receipt of the request by the Purchaser. The
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registration statement filed pursuant to the request of the Purchaser may
include other securities of the Company, with respect to which registration
rights have been granted, and may include securities of the Company being sold
for the account of the Company. In addition, the Company shall not be obligated
to effect, or to take any action to effect, any such registration during the
period starting with the date sixty (60) days prior to the Company's good faith
estimate of the date of filing of, and ending on a date one hundred twenty (120)
days after the effective date of, a registration statement otherwise filed by
the Company covering shares newly issued by the Company or held by selling
shareholders, or both; provided that the Company is actively employing in good
faith all reasonable efforts to cause such prior registration statement to
become effective.
5.9 Except as herein provided, any provision of this Agreement may be
amended or waived by a written instrument signed by the parties hereto.
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals
as of the date and year first written above.
Country in which this Agreement is executed by Purchaser: ____________
By: _____________________________________
(Purchaser)
Telecopier No.: _________________________
Microelectronic Packaging, Inc.
By: _____________________________________
(Company)
Telecopier No: (000) 000-0000
_________________________________________
Xxxxxxx Xxxxxxxxxx Xxxxxx
Xxxxx & Xxxxx
By: _____________________________________
(Escrow Agent)
Telecopier No: (000) 000-0000
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