EXHIBIT 10.35
CHIPPAC, INC.
CLASS A COMMON STOCK PURCHASE AGREEMENT
This Class A Common Stock Purchase Agreement (this "Agreement") is made and
entered into as of July 13, 2000, by and between Chippac, Inc., a Delaware
corporation ("ChipPAC Delaware") and XXXXXXXX Xxxxxxxxxxxx, a Delaware
corporation (the "Purchaser").
RECITALS
WHEREAS, pursuant to an Agreement and Plan of Merger dated as of June 13,
2000, by and between ChipPAC Delaware and ChipPAC, Inc., a California
corporation ("ChipPAC California"), ChipPAC California will be merged with and
into ChipPAC Delaware (the "Merger"). The Merger will become effective
immediately prior to the effectiveness of ChipPAC Delaware's registration
statement on Form S-1 (Reg. No. 333-39428), as filed with the SEC on June 16,
2000 (the "Registration Statement") with respect to the initial public offering
("IPO") of its shares of Class A common stock, par value $.01 per share (the
"Class A Common"). When used herein, all references to the "Company" shall mean
ChipPAC California prior to the effectiveness of the Merger, and shall mean
ChipPAC Delaware after the effectiveness of the Merger.
WHEREAS, Purchaser has executed and delivered to the Company and the
underwriters named therein, a Lock-Up Agreement for the benefit of the Company
and such underwriters restricting the right of Purchaser to transfer the Shares
(as defined below) as specified in such Lock-Up Agreement.
WHEREAS, ChipPAC Delaware has authorized the sale and issuance to Purchaser
of a number of shares of its Class A Common equal to $25 million divided by a
purchase price per share of Class A Common equal to 95% of the price per share
of Class A Common paid by the public (i.e., the price paid by the public, before
deducting for underwriting discounts, as stated on the cover page of the final
prospectus filed with the Securities and Exchange Commission in connection with
the IPO) (the "Shares").
WHEREAS, Purchaser desires to purchase the Shares on the terms and
conditions set forth herein.
WHEREAS, ChipPAC Delaware desires to issue and sell the Shares to Purchaser
on the terms and conditions set forth herein.
AGREEMENT
Now, THEREFORE, in consideration of the foregoing recitals and the mutual
promises, representations, warranties, and covenants hereinafter set forth and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Agreement To Sell And Purchase.
1.1 Authorization of Shares. On or prior to the Closing (as defined
in Section 2 below), ChipPAC Delaware shall have authorized the sale and
issuance to Purchaser of the Shares.
1.2 Sale and Purchase. Subject to the terms and conditions hereof,
at the Closing (as hereinafter defined), ChipPAC Delaware hereby agrees to issue
and sell to Purchaser, and Purchaser agrees to purchase from ChipPAC Delaware,
the Shares, for an aggregate purchase price of $25 million.
2. Closing, Delivery And Payment.
2.1 Closing. The closing of the sale and purchase of the Shares
under this Agreement (the "Closing") shall take place at 9:00 a.m. on the date
ChipPAC Delaware sells its shares of Class A Common to an underwriting group led
by CS First Boston Corporation in connection with its IPO, at the offices of
Xxxxxx Godward LLP, 0000 Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxx Xxxxx, XX 00000, or
at such other time or place as the Company and Purchaser may mutually agree
(such date is hereinafter referred to as the "Closing Date").
2.2 Delivery. At the Closing, subject to the terms and conditions
hereof, ChipPAC Delaware will deliver to Purchaser a certificate representing
the number of Shares to be purchased at the Closing by Purchaser, against
payment of the purchase price therefor by wire transfer of immediately available
funds.
3. Representations And Warranties Of the Company. Reference is hereby
made to the Underwriting Agreement to be entered into in connection with the
consummation of the IPO between the Company and its underwriting group led by CS
First Boston Corporation (the "Underwriting Agreement"). Each of the
representations and warranties to be made by the Company in the Underwriting
Agreement are hereby incorporated by reference herein as if fully set forth in
this Agreement, and each such representation and warranty is hereby made by the
Company to Purchaser as of the date such representations and warranties are made
pursuant to the Underwriting Agreement.
4. Representations And Warranties Of The Purchaser. Purchaser hereby
represents and warrants to the Company as follows (such representations and
warranties do not lessen or obviate the representations and warranties of the
Company set forth in this Agreement):
4.1 Requisite Power and Authority. Purchaser has all necessary power
and authority under all applicable provisions of law to execute and deliver this
Agreement and to carry out its provisions. All action on Purchaser's part
required for the lawful execution and delivery of this Agreement have been or
will be effectively taken prior to the Closing. Upon its execution and
delivery, this Agreement will be a valid and binding obligation of Purchaser,
enforceable in accordance with its terms, except (a) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting enforcement of creditors' rights and (b) as limited by
general principles of equity that restrict the availability of equitable
remedies.
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4.2 Investment Representations. Purchaser understands that the
Shares have not been registered under the Securities Act. Purchaser also
understands that the Shares are being offered and sold pursuant to an exemption
from registration contained in the Securities Act based in part upon Purchaser's
representations contained in the Agreement. Purchaser hereby represents and
warrants as follows:
(a) Purchaser Bears Economic Risk. Purchaser has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company so that it is capable of
evaluating the merits and risks of its investment in the Company and has the
capacity to protect its own interests. Purchaser must bear the economic risk of
this investment indefinitely unless the Shares are registered pursuant to the
Securities Act, or an exemption from registration is available.
(b) Acquisition for Own Account. Purchaser is acquiring the Shares
for Purchaser's own account for investment only, and not with a view towards
their distribution.
(c) Purchaser Can Protect Its Interest. Purchaser represents that by
reason of its, or of its management's, business or financial experience,
Purchaser has the capacity to protect its own interests in connection with the
transactions contemplated in this Agreement.
(d) Accredited Investor. Purchaser represents that it is an
accredited investor within the meaning of Regulation D under the Securities Act.
(e) Company Information. Purchaser has received and read the
Registration Statement and has had an opportunity to discuss the Company's
business, management and financial affairs with directors, officers and
management of the Company and has had the opportunity to review the Company's
operations and facilities. Purchaser has also had the opportunity to ask
questions of and receive answers from, the Company and its management regarding
the terms and conditions of this investment.
(f) HSR Filing. Purchaser has no intention of participating in the
formulation, determination or the direction of the Company's basic business
decisions, and therefore, Purchaser's acquisition of the Shares is exempt from
reporting pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, by reason of the exemption provided pursuant to the Federal Trade
Commission's Premerger Notification Rules for the acquisition of voting stock
representing 10% or less of a target company's voting power being held by the
acquiring person, so long as the acquiring person acquired such voting stock
solely for purposes of investment.
5. Conditions To Closing.
5.1 Conditions to Purchaser's Obligations at the Closing.
Purchaser's obligations to purchase the Shares at the Closing are subject to the
satisfaction, at or prior to the Closing Date, of the following conditions:
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(a) Representations and Warranties True; Performance of Obligations.
The representations and warranties made by the Company in Section 3 hereof shall
be true and correct in all material respects (except for any such representation
or warranty which is already limited by "materiality" or words of similar
import, which shall be true and correct in all respects) as of the Closing Date
with the same force and effect as if they had been made as of the Closing Date,
and the Company shall have performed in all material respects (except for any
such obligation or condition which is already limited by "materiality" or words
of similar import, which shall have been complied with in all respects) all
obligations and conditions herein required to be performed or observed by it on
or prior to the Closing. The Company shall have caused each of its officers,
directors and 2% shareholders (before giving effect to the IPO) to have entered
into a lock-up agreement substantially similar to the one delivered by Purchaser
as of the date hereof. The IPO shall have been consummated on or prior to
September 30, 2000.
(b) Legal Investment. On the Closing Date, the sale and issuance of
the Shares shall be legally permitted by all laws and regulations to which
Purchaser and the Company are subject.
(c) Consents, Permits, and Waivers. The Company shall have obtained
any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement (except for such
as may be properly obtained subsequent to the Closing).
(d) Corporate Documents. The Company shall have delivered to
Purchaser or its counsel, copies of all corporate documents of the Company as
Purchaser shall reasonably request.
(e) Compliance Certificate. The Company shall have delivered to
Purchaser a Compliance Certificate, executed by the Chief Executive Officer or
Chief Financial Officer of the Company, dated the Closing Date, to the effect
that the conditions specified in subsection (a) and (c) of this Section 5.1 have
been satisfied.
(f) Secretary's Certificate. The Purchaser shall have received from
the Company's Secretary, a certificate having attached thereto (i) the Company's
Certificate of Incorporation as in effect at the time of the Closing, (ii) the
Company's Bylaws as in effect at the time of the Closing, (iii) resolutions
approved by the Board of Directors authorizing the transactions contemplated
hereby and (iv) a good standing certificate from the Secretary of State of
Delaware with respect to the Company, dated a recent date before the Closing.
(g) Legal Opinion. The Purchaser shall have received from Xxxxxxxx &
Xxxxx, legal counsel to the Company, a copy of the legal opinion delivered to
the underwriting group leading the Company's IPO upon the consummation of the
IPO, together with a letter from Xxxxxxxx & Xxxxx, addressed to Purchaser,
stating that Purchaser may rely on such opinion as if such opinion was addressed
to Purchaser.
(h) Amendment to Registration Agreement. The Company and certain of
its shareholders shall have executed and delivered Amendment No. 2 to the
Company's Registration Agreement, in the form attached hereto as Exhibit A,
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granting Purchaser the registration rights specified therein.
(i) Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the Closing hereby and all
documents and instruments incident to such transactions shall be reasonably
satisfactory in substance and form to the Purchaser and its counsel, and the
Purchaser and its counsel shall have received all such counterpart originals or
certified or other copies of such documents as they may reasonably request.
5.2 Conditions to Obligations of the Company. The Company's
obligation to issue and sell the Shares at the Closing is subject to the
satisfaction, on or prior to such Closing, of the following conditions:
(a) Representations and Warranties True. The representations and
warranties in Section 4 made by Purchaser shall be true and correct in all
material respects (except for any such representation or warranty which is
already limited by "materiality" or words of similar import, which shall be true
and correct in all respects) at the date of the Closing, with the same force and
effect as if they had been made on and as of said date. The Purchaser shall
have performed and complied in all material respects (except for any such
agreement or condition which is already limited by "materiality" or words of
similar import, which shall have been complied with in all respects) with all
agreements and conditions herein required to be performed or complied with by
Purchaser on or before the Closing. The IPO shall have been consummated on or
prior to September 30, 2000.
(b) Legal Investment. On the Closing Date, the sale and issuance of
the Shares shall be legally permitted by all laws and regulations to which
Purchaser and the Company are subject.
(c) Consents, Permits, and Waivers. The Company shall have obtained
any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement (except for such
as may be properly obtained subsequent to the Closing).
(d) Amendment to Registration Agreement. Purchaser shall have
executed and delivered Amendment No. 2 to the Company's Registration Agreement,
in the form attached hereto as Exhibit A.
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6. Additional Agreements.
6.1 Confidentiality. Each party hereto agrees that, except with the
prior written consent of the other party, it shall at all times keep
confidential and not divulge, furnish or make accessible to anyone any
confidential information, knowledge or data concerning or
relating to the business or financial affairs of the other parties to which such
party has been or shall become privy by reason of this Agreement, discussions or
negotiations relating to this Agreement, the performance of its obligations
hereunder or the ownership of the Shares purchased hereunder; provided, that the
parties may make any disclosure or announcement of information (i) to
consultants, advisors, lenders, accountants and similar advisors the extent
necessary to facilitate its reasonable business relationships and (ii) to the
extent that it is so obligated pursuant to applicable law or regulation,
including any applicable law or regulation of the Nasdaq or any national
securities exchange. Notwithstanding any provision contained in this Agreement
to the contrary, the Company shall be permitted to disclose to the public in any
registration statement or prospectus prepared by the Company and filed with the
SEC (or any road show or similar investors' presentation made in connection with
any such registration statement or prospectus) that each of the parties hereto
have entered into this Agreement and any other agreement executed
contemporaneously between the parties or their respective affiliates.
6.2 Restricted Securities. "Restricted Securities" means (i) the
Class A Common issued hereunder and (ii) any securities issued with respect to
the securities referred to in clause (i) above by way of a stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. As to any particular Restricted
Securities, such securities shall cease to be Restricted Securities when they
have (a) been effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them, (b) been distributed
to the public through a broker, dealer or market maker pursuant to Rule 144
under the Securities Act or become eligible for sale pursuant to Rule 144 under
the Securities Act or (c) been otherwise transferred and new certificates for
them not bearing the Securities Act legend set forth in this Section 6.2 have
been delivered by the Company in accordance with this Section 6.2. Whenever any
particular securities cease to be Restricted Securities, the holder thereof
shall be entitled to receive from the Company, without expense, new securities
of like tenor not bearing a Securities Act legend of the character set forth in
this Section 6.2. Restricted Securities are transferable only pursuant to (a)
public offerings registered under the Securities Act, (b) Rule 144 of the
Securities and Exchange Commission if such rule is available and (c) subject to
the conditions specified in this Section 6.2, any other legally available means
of transfer. In connection with the transfer of any Restricted Securities
(other than a transfer described in clause (a) or (b) of the preceding
sentence), the holder thereof shall deliver written notice to Company describing
in reasonable detail the transfer or proposed transfer, together with an opinion
of counsel which (to Company's reasonable satisfaction) is knowledgeable in
securities law matters to the effect that such transfer of Restricted Securities
may be effected without registration of such Restricted Securities under the
Securities Act. In addition, if the holder of the Restricted Securities
delivers to Company an opinion of such counsel that no subsequent transfer of
such Restricted Securities shall require registration under the Securities Act,
Company shall promptly upon such contemplated transfer deliver new certificates
for such Restricted Securities which do not bear the Securities Act legend set
forth in this Section 6.2. If Company is not required to deliver new
certificates for such Restricted Securities not bearing such legend, the holder
thereof shall not transfer the same until the prospective transferee has
confirmed to Company in writing its agreement to be bound
by the conditions contained in this Section 6.2. Each certificate or instrument
representing Restricted Securities shall be imprinted with a legend in
substantially the following form:
"The securities represented by this certificate were originally issued
on ____ __, 2000, and have not been registered under the Securities
Act of 1933, as amended. The transfer of the securities represented
by this certificate is subject to the conditions specified in the
Class A Common Stock Purchase Agreement, dated as of July 13, 2000, as
amended and modified from time to time, between the issuer (the
"Company") and the purchaser of such securities, and the Company
reserves the right to refuse the transfer of such securities until
such conditions have been fulfilled with respect to such transfer. A
copy of such conditions shall be furnished by the Company to the
holder hereof upon written request and without charge."
7. Miscellaneous.
7.1 Governing Law. This Agreement shall be governed in all respects
by the laws of the State of California as such laws are applied to agreements
between California residents entered into and performed entirely in California.
7.2 Survival. The representations, warranties, covenants and
agreements made herein shall survive any investigation made by any Purchaser and
the closing of the transactions contemplated hereby for a period of one (1) year
following the Closing. All statements as to factual matters contained in any
certificate or other instrument delivered by or on behalf of the Company
pursuant hereto in connection with the transactions contemplated hereby shall be
deemed to be representations and warranties by the Company hereunder solely as
of the date of such certificate or instrument.
7.3 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto and shall inure to the benefit of and be enforceable by each
person who shall be a holder of the Shares from time to time.
7.4 Entire Agreement. This Agreement, the exhibits and schedules
hereto, and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and no party shall be liable or bound to any other in any manner
by any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
7.5 Severability. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
7.6 Amendment and Waiver. The obligations of the Company and the
rights of the Purchaser under this Agreement may be waived only with the written
consent of Purchaser.
7.7 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under this Agreement shall impair any
such right, power or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of or in
any similar breach, default or noncompliance thereafter occurring. It is
further agreed that any waiver, permit, consent or approval of any kind or
character on Purchaser's part of any breach, default or noncompliance under
this Agreement or any waiver on Purchaser's part of any provisions or conditions
of the Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or otherwise afforded to any party, shall be cumulative and not
alternative.
7.8 Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (a) upon personal delivery to the
party to be notified, (b) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient, if not, then on the next business
day, (c) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid or (d) one (1) day after deposit with
a nationally recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be sent in each case
to the respective address specified below:
If to Purchaser, to:
XXXXXXXX Xxxxxxxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: General Counsel
With a copy to:
Xxxxxx Godward LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxx
If to the Company, to:
ChipPAC, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Attn: CEO
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
or, in each case, at such other address as the Company or Purchaser may
designate by ten (10) days advance written notice to the other party.
7.9 Expenses. Each party shall pay all costs and expenses that it
incurs with respect to the negotiation, execution, delivery and performance of
the Agreement; provided, however, that the Company shall, at the Closing,
reimburse the reasonable fees and expenses of Xxxxxx Godward LLP as special
counsel to the Purchaser in an amount not to exceed $20,000 incurred in
connection with the negotiation, execution, delivery and performance of this
Agreement.
7.10 Titles and Subtitles. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
7.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument (any one or more of which may be by facsimile).
7.12 Broker's Fees. Each party hereto represents and warrants that no
agent, broker, investment banker, person or firm acting on behalf of or under
the authority of such party hereto is or will be entitled to any broker's or
finder's fee or any other commission directly or indirectly in connection with
the transactions contemplated herein. Each party hereto further agrees to
indemnify each other party for any claims, losses or expenses incurred by such
other party as a result of the representation in this Section being untrue.
7.13 Pronouns. All pronouns contained herein, and any variations
thereof, shall be deemed to refer to the masculine, feminine or neutral,
singular or plural, as to the identity of the parties hereto may require.
7.14 Corporate Securities Law. THE SALE OF THE SECURITIES WHICH ARE
THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH
QUALIFICATION OR IN THE ABSENCE OF AN EXEMPTION FROM SUCH QUALIFICATION IS
UNLAWFUL. PRIOR TO ACCEPTANCE OF SUCH CONSIDERATION BY THE COMPANY, THE RIGHTS
OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH
QUALIFICATION BEING OBTAINED OR AN EXEMPTION FROM SUCH QUALIFICATION BEING
AVAILABLE.
In Witness Whereof, the parties hereto have executed this Class A Common
Stock Purchase Agreement as of the date set forth in the first paragraph hereof.
COMPANY: PURCHASER:
ChipPAC, Inc. XXXXXXXX Xxxxxxxxxxxx
Signature: /s/ Xxxxxx Xxxxxxxx Signature: /s/ Xxxxxxx X. Xxxxxxxx
Print Name: Xxxxxx Xxxxxxxx Print Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President Title: Executive Vice President
and Chief Financial and Chief Financial
Officer Officer
