EXHIBIT 10.5.2
FORM OF
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AMENDMENT NO. 2 TO AMENDED AND
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RESTATED REGISTRATION AGREEMENT
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THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED REGISTRATION AGREEMENT (this
"Amendment") is made and entered into as of July 13, 2000, by and among
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ChipPAC, Inc., a Delaware corporation and successor by merger to ChipPAC, Inc.,
a California corporation (the "Company"), XXXXXXXX Xxxxxxxxxxxx, a Delaware
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corporation ("QUALCOMM") and each of the other persons and entities listed on
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the signature pages hereto, which persons and entities are, effective as of the
date hereof, holders of not less than a majority of the Company's Registrable
Securities (as defined in the Original Agreement described in this Amendment).
This Amendment amends that certain Amended and Restated Registration Agreement
dated as of August 5, 1999, as amended by Amendment No. 1 thereto dated June 30,
2000, by and among the Company and each of the other shareholders of the Company
listed therein (collectively, the "Original Agreement"). Unless otherwise
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provided in this Agreement, capitalized terms used herein shall have the
meanings set forth in the Original Agreement.
WHEREAS, the Company and QUALCOMM are parties to that certain Class A
Common Stock Purchase Agreement dated as of July 13, 2000 (the "QUALCOMM
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Purchase Agreement"); and
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WHEREAS, the execution and delivery of this Agreement is a condition to the
closing of the transactions contemplated by the QUALCOMM Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, and intending to be
legally bound hereby, the parties hereby agree as follows:
1. The second sentence of the first introductory paragraph of the Original
Agreement is hereby amended and restated in its entirety to read as follows:
The Hyundai Shareholders, the Xxxx Shareholders, the SXI Shareholders,
Intel, CSFB, Sankaty, Sapphire and QUALCOMM are collectively referred to herein
as the "Shareholders," and each as a "Shareholder."
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2. Section 1(a) of the Original Agreement is hereby amended by adding the
following sentence at the end of Section 1(a).
"The holders of a majority of the QUALCOMM Registrable Securities may
request registration under the Securities Act of all or part of the
QUALCOMM Registrable Securities pursuant to a Long-Form Registration or a
Short-Form Registration under the circumstances and as set forth in
paragraph 1(j) below."
3. The Original Agreement is hereby amended by adding the
following Section 1(j).
"(j) QUALCOMM Demand Registration Rights. At any time after the
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Company's Common Stock is publicly traded on any national securities
exchange or quoted as a NASDAQ "National Market Security" and prior to
the seventh anniversary of the closing of the transactions
contemplated by the QUALCOMM Purchase Agreement, the holders of a
majority of the QUALCOMM Registrable Securities will be entitled to
request one Long-Form Registration in which the Company will pay all
Registration Expenses (the "QUALCOMM Demand Registration"); provided
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that the Company will not be obligated to effect such QUALCOMM Demand
Registration unless the holders of the QUALCOMM Registrable Securities
request to include at least 50% of the QUALCOMM Registrable
Securities. The QUALCOMM Demand Registration will be a Short-Form
Registration if the Company is permitted to use any applicable short
form. A registration shall not count as QUALCOMM's one permitted
QUALCOMM Demand Registration until it has become effective (unless
such registration has not become effective due solely to the fault of
the holders requesting such registration) and unless the holders of
QUALCOMM Registrable Securities are able to register and sell at least
75% of the QUALCOMM Registrable Securities requested to be included in
such registration; provided, however, that the holders of QUALCOMM
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Registrable Securities shall not be entitled to request more than one
such registration in any six month period even if the previous
registration did not count as QUALCOMM's one permitted QUALCOMM Demand
Registration. Nevertheless, the Company shall pay all Registration
Expenses in connection with any registration that was initiated as a
QUALCOMM Demand Registration whether or not it has become effective
and whether or not such registration has counted as QUALCOMM's one
permitted QUALCOMM Demand Registration."
4. Section 1(f) of the Original Agreement is hereby amended and
restated as follows:
"(f) Priority on Demand Registrations. The Company will not
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include in any Demand Registration any securities which are not
Registrable Securities without the prior written consent of (i) the
holders of a majority of the Registrable Securities included in such
registration, in the case of any Demand Registration other than a
Hyundai Demand Registration, an Intel Demand Registration or a
QUALCOMM Demand Registration, (ii) the holders of a majority of the
Hyundai Registrable Securities in the case of a Hyundai Demand
Registration, (iii) the holders of a majority of the Intel Registrable
Securities in the case of an Intel Demand Registration and (iv) the
holders of a majority of the QUALCOMM Registrable Securities in the
case of a QUALCOMM Demand Registration. If a Demand Registration is
an underwritten offering and the managing underwriters advise the
Company in writing that in their opinion the number of Registrable
Securities and, if permitted hereunder, other securities requested to
be included in such offering exceeds the number of Registrable
Securities and other securities, if
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any, which can be sold therein without adversely affecting the
marketability of the offering, (i) in the case of any Demand
Registration other than a Hyundai Demand Registration, an Intel Demand
Registration or a QUALCOMM Demand Registration, the Company will
include in such registration prior to the inclusion of any securities
which are not Registrable Securities the number of Registrable
Securities requested to be included which in the opinion of such
underwriters can be sold without adversely affecting the marketability
of the offering, pro rata among the respective holders thereof on the
basis of the number of shares of Registrable Securities owned by each
such holder, (ii) in the case of a Hyundai Demand Registration, the
Company will include in such registration (A) first, the securities
the holders of the Hyundai Registrable Securities propose to sell, pro
rata among the respective holders thereof on the basis of the number
of shares of Registrable Securities owned by each such holder, (B)
second, the Registrable Securities requested to be included in such
registration by the other holders of Registrable Securities, pro rata
among such other holders on the basis of the number of shares of
Registrable Securities owned by each such holder and (C) third, other
securities requested to be included in such registration, (iii) in the
case of an Intel Demand Registration, the Company will include in such
registration (A) first, the securities the holders of the Intel
Registrable Securities propose to sell, pro rata among the respective
holders thereof on the basis of the number of shares of Registrable
Securities owned by each such holder, (B) second, the Registrable
Securities requested to be included in such registration by the other
holders of Registrable Securities, pro rata among such other holders
on the basis of the number of shares of Registrable Securities owned
by each such holder and (C) third, other securities requested to be
included in such registration and (iv) in the case of a QUALCOMM
Demand Registration, the Company will include in such registration (A)
first, the securities the holders of the QUALCOMM Registrable
Securities propose to sell, pro rata among the respective holders
thereof on the basis of the number of shares of Registrable Securities
owned by each such holder, (B) second, the Registrable Securities
requested to be included in such registration by the other holders of
Registrable Securities, pro rata among such other holders on the basis
of the number of shares of Registrable Securities owned by each such
holder and (C) third, other securities requested to be included in
such registration."
5. Section 1(h) of the Original Agreement is hereby amended and
restated as follows:
"(h) Selection of Underwriters. The holders of a majority of the
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Xxxx Registrable Securities and the holders of a majority of the SXI
Registrable Securities included in any Demand Registration (other than
a Hyundai Demand Registration, an Intel Demand Registration or a
QUALCOMM Demand Registration) will have the right to select the
investment banker(s) and manager(s) to administer the offering,
subject to the Company's approval, which will not be unreasonably
withheld. The Company will have the right to select the investment
banker(s) and manager(s) to administer any Hyundai Demand
Registration,
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subject to the approval of a majority of the Hyundai
Registrable Securities included in any Hyundai Demand Registration,
which will not be unreasonably withheld. The Company will have the
right to select the investment banker(s) and manager(s) to administer
any Intel Demand Registration, subject to the approval of a majority
of the Intel Registrable Securities included in any Intel Demand
Registration, which will not be unreasonably withheld. The Company
will have the right to select the investment banker(s) and manager(s)
to administer any QUALCOMM Demand Registration, subject to the
approval of a majority of the QUALCOMM Registrable Securities included
in any QUALCOMM Demand Registration, which will not be unreasonably
withheld."
6. The following clause is added to the end of the only sentence
of Section 3(a) of the Original Agreement (immediately before the period):
"; provided that with respect to QUALCOMM, the agreement contained in
this Section 3(a) shall only apply with respect to the Company's
Initial Public Offering"
7. Section 9 of the Original Agreement is hereby amended by
adding the following definitions:
"QUALCOMM Registrable Securities" means (i) any shares of Common Stock
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issued to QUALCOMM pursuant to the QUALCOMM Purchase Agreement, (ii) any equity
securities issued or issuable directly or indirectly with respect to the
securities referred to in clause (i) by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization, including a recapitalization or exchange
and (iii) any other shares of Common Stock held by Persons holding securities
described in clause (i) or (ii) above; provided that in the event that pursuant
to such recapitalization or exchange, Non-Participating Securities are issued,
such Non-Participating Securities will not be Registrable Securities.
Notwithstanding anything in this Agreement to the contrary, shares of Common
Stock or other equity securities of the Company that would otherwise constitute
QUALCOMM Registrable Securities shall not be considered QUALCOMM Registrable
Securities (and thus, not Registrable Securities) if the holder thereof can
sell, in any three (3) month period, all of such holder's shares or securities,
as applicable, without registration pursuant to Rule 144 under the Securities
Act. As to any particular shares constituting QUALCOMM Registrable Securities,
such shares will cease to be QUALCOMM Registrable Securities when they have been
(x) effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering them or (y) sold to the
public through a broker, dealer or market maker pursuant to Rule 144 (or by
similar provision then in force) under the Securities Act.
8. The definition of "Registrable Securities" set forth in
Section 9 of the Original Agreement is hereby amended and restated in its
entirety to read as follows:
"Registrable Securities" means collectively the Hyundai Registrable
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Securities, the Intel Registrable Securities, the Xxxx Registrable Securities,
the SXI Registrable Securities,
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the Financing Source Registrable Securities, the Sapphire Registrable Securities
and the QUALCOMM Registrable Securities. For purposes of this Agreement, a
Person will be deemed to be a holder of Registrable Securities whenever such
Person has the right to acquire such Registrable Securities (upon conversion or
exercise in connection with a transfer of securities or otherwise, but
disregarding any restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected.
9. Effectiveness. From and after the date of this Agreement, the
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holders of QUALCOMM Registrable Securities shall be a party to the Original
Agreement, as amended hereby, and shall have all of the rights and be subject to
all of the duties as a holder of QUALCOMM Registrable Securities. Except as
otherwise set forth in this Amendment, the terms of the Original Agreement shall
remain in full force and effect and shall remain unchanged.
10. Integration. Any reference in the Original Agreement to the
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term "Agreement" is deemed to refer to both the Original Agreement as well as
the Original Agreement, as amended by this Amendment.
11. Miscellaneous.
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(a) No Inconsistent Agreements. The Company will not hereafter
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enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the holders of Registrable Securities in
this Agreement.
(b) Adjustments Affecting Registrable Securities. The Company will
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not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would adversely
affect the marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(c) Remedies. The parties hereto agree and acknowledge that money
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damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party hereto will have the right to injunctive relief, in
addition to all of its other rights and remedies at law or in equity, to enforce
the provisions of this Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein,
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the provisions of this Amendment may be amended or waived only upon the prior
written consent of the Company and holders of a majority of the Registrable
Securities; but if such amendment or waiver would treat a holder or group of
holders of Registrable Securities in a manner different from any other holders
of Registrable Securities, then such amendment or waiver will require the
consent of such holder or the holders of a majority of the Registrable
Securities of such group adversely treated.
(e) Successors and Assigns. This Amendment will be binding upon
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and inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment has been made, the provisions
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of this Amendment that are for the benefit of the holders of Registrable
Securities (or any portion thereof) as such will be for the benefit of and
enforceable by any subsequent holder of any Registrable Securities (or of such
portion thereof), subject to the provisions respecting the minimum numbers or
percentages of shares of Registrable Securities (or of such portion thereof)
required in order to be entitled to certain rights, or take certain actions,
contained herein.
(f) Severability. Whenever possible, each provision of this
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Amendment will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Amendment is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Amendment will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
(g) Counterparts. This Amendment may be executed simultaneously in
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two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will constitute
one and the same agreement.
(h) Descriptive Headings. The descriptive headings of this
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Amendment are inserted for convenience only and do not constitute a part of this
Amendment.
(i) Governing Law. All issues concerning the enforceability,
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validity and binding effect of this Amendment will be governed by and construed
in accordance with the laws of the State of California, without giving effect to
any choice of law or conflict of law provision or rule (whether of the State of
California or any other jurisdiction) that would cause the application of the
law of any jurisdiction other than the State of California.
(j) Notices. All notices, demands or other communications to be
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given or delivered under or by reason of the provisions of this Amendment will
be in writing and will be deemed to have been given when personally delivered or
received by certified mail, return receipt requested, or sent by guaranteed
overnight courier service. Such notices, demands and other communications shall
be sent to the addresses listed in the Original Agreement, the addresses
indicated below or, if no address is so indicated for any particular
Shareholder, at the address listed in the Company's records:
If to QUALCOMM:
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XXXXXXXX Xxxxxxxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn: General Counsel
With a copy to:
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Xxxxxx Godward LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
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Xxx Xxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxx
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 2 to
Amended and Restated Registration Agreement on the day and year first above
written.
CHIPPAC, INC.
By:____
Its:___
QUALCOMM:
XXXXXXXX XXXXXXXXXXXX
By:____
Its:___
THE XXXX SHAREHOLDERS:
XXXX CAPITAL FUND VI, L.P.
By: Xxxx Capital Partners VI, L.P.
Its: General Partner
By: Xxxx Capital Investors, Inc.
Its: General Partner
By:___
A Managing Director
BCIP ASSOCIATES II
By:___
A General Partner
BCIP ASSOCIATES II-B
By:___
A General Partner
BCIP ASSOCIATES II-C
By:___
A General Partner
BCIP TRUST ASSOCIATES II
By: Xxxx Capital, Inc.
Its: General Partner
By:___
A Managing Director
BCIP TRUST ASSOCIATES II-B
By: Xxxx Capital, Inc.
Its: General Partner
By:___
A Managing Director
PEP INVESTMENTS PTY., LTD.
By:____
Its:___
XXXXXXXX STREET PARTNERS II
By:___
A General Partner
SXI GROUP LLC
By:____
Its:___
