Exhibit 99.3
$50,000,000 CONVERTIBLE SUBORDINATED NOTE
DUE JUNE 15, 2011
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY AND THE SHARES OF COMMON STOCK
ISSUABLE UPON CONVERSION THEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF
THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
THIS SECURITY AND THE SHARES OF CLASS A COMMON STOCK ISSUABLE UPON CONVERSION
THEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN
THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE. IN ANY CASE, THE HOLDER HEREOF WILL NOT,
DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THIS
SECURITY EXCEPT AS PERMITTED UNDER THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION
RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO
COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.
THIS SECURITY MAY NOT BE SOLD OR TRANSFERRED TO, AND EACH PURCHASER BY ITS
PURCHASE OF THIS SECURITY SHALL BE DEEMED TO HAVE REPRESENTED AND COVENANTED
THAT IT IS NOT ACQUIRING THIS SECURITY FOR OR ON BEHALF OF, AND WILL NOT
TRANSFER THIS SECURITY TO, ANY PENSION OR WELFARE PLAN AS DEFINED IN SECTION
3(1) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA") EXCEPT THAT SUCH PURCHASE FOR OR ON BEHALF OF A PENSION OR WELFARE
PLAN SHALL BE PERMITTED:
(i) TO THE EXTENT SUCH PURCHASE IS MADE BY OR ON BEHALF OF A BANK
COLLECTIVE INVESTMENT FUND MAINTAINED BY THE PURCHASER IN WHICH NO PLAN
(TOGETHER WITH ANY OTHER PLANS MAINTAINED BY THE SAME EMPLOYER OR EMPLOYEE
ORGANIZATION) HAS AN INTEREST IN EXCESS OF 10% OF THE TOTAL ASSETS IN SUCH
COLLECTIVE INVESTMENT FUND, AND THE OTHER
1
APPLICABLE CONDITIONS OF PROHIBITED TRANSACTION CLASS EXEMPTION 91-38
ISSUED BY THE DEPARTMENT OF LABOR ARE SATISFIED;
(ii) TO THE EXTENT SUCH PURCHASE IS MADE BY OR ON BEHALF OF AN
INSURANCE COMPANY POOLED SEPARATE ACCOUNT MAINTAINED BY THE PURCHASER IN
WHICH, AT ANY TIME WHILE THESE SECURITIES ARE OUTSTANDING, NO PLAN
(TOGETHER WITH ANY OTHER PLANS MAINTAINED BY THE SAME EMPLOYER OR EMPLOYEE
ORGANIZATION) HAS AN INTEREST IN EXCESS OF 10% OF THE TOTAL OF ALL ASSETS
IN SUCH POOLED SEPARATE ACCOUNT, AND THE OTHER APPLICABLE CONDITIONS OF
PROHIBITED TRANSACTION CLASS EXEMPTION 90-1 ISSUED BY THE DEPARTMENT OF
LABOR ARE SATISFIED;
(iii) TO THE EXTENT SUCH PURCHASE IS MADE ON BEHALF OF A PLAN BY (A)
AN INVESTMENT ADVISER REGISTERED UNDER THE INVESTMENT ADVISERS ACT OF 1940,
AS AMENDED (THE "1940 ACT"), THAT HAD AS OF THE LAST DAY OF ITS MOST RECENT
FISCAL YEAR TOTAL ASSETS UNDER ITS MANAGEMENT AND CONTROL IN EXCESS OF
$50.0 MILLION AND HAD STOCKHOLDERS' OR PARTNERS' EQUITY IN EXCESS OF
$750,000, AS SHOWN IN ITS MOST RECENT BALANCE SHEET PREPARED IN ACCORDANCE
WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, OR (B) A BANK AS DEFINED IN
SECTION 202(A)(2) OF THE 1940 ACT WITH EQUITY CAPITAL IN EXCESS OF $1.0
MILLION AS OF THE LAST DAY OF ITS MOST RECENT FISCAL YEAR, OR (C) AN
INSURANCE COMPANY WHICH IS QUALIFIED UNDER THE LAWS OF MORE THAN ONE STATE
TO MANAGE, ACQUIRE OR DISPOSE OF ANY ASSETS OF A PENSION OR WELFARE PLAN,
WHICH INSURANCE COMPANY HAS AS OF THE LAST DAY OF ITS MOST RECENT FISCAL
YEAR, NET WORTH IN EXCESS OF $1.0 MILLION AND WHICH IS SUBJECT TO
SUPERVISION AND EXAMINATION BY A STATE AUTHORITY HAVING SUPERVISION OVER
INSURANCE COMPANIES AND, IN ANY CASE, SUCH INVESTMENT ADVISER, BANK OR
INSURANCE COMPANY IS OTHERWISE A QUALIFIED PROFESSIONAL ASSET MANAGER, AS
SUCH TERM IS USED IN PROHIBITED TRANSACTION CLASS EXEMPTION 84-14 ISSUED BY
THE DEPARTMENT OF LABOR, AND THE ASSETS OF SUCH PLAN WHEN COMBINED WITH THE
ASSETS OF OTHER PLANS ESTABLISHED OR MAINTAINED BY THE SAME EMPLOYER (OR
AFFILIATE THEREOF) OR EMPLOYEE ORGANIZATION AND MANAGED BY SUCH INVESTMENT
ADVISER, BANK OR INSURANCE COMPANY, DO NOT REPRESENT MORE THAN 20% OF THE
TOTAL CLIENT ASSETS MANAGED BY SUCH INVESTMENT ADVISER, BANK OR INSURANCE
COMPANY AT THE TIME OF THE TRANSACTION, AND THE OTHER APPLICABLE CONDITIONS
OF SUCH EXEMPTION ARE OTHERWISE SATISFIED;
(iv) TO THE EXTENT SUCH PLAN IS A GOVERNMENTAL PLAN (AS DEFINED AS
SECTION 3(33) OF ERISA) WHICH IS NOT SUBJECT TO THE PROVISIONS OF TITLE 1
OF ERISA OR SECTION 401 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE");
(v) TO THE EXTENT SUCH PURCHASE IS MADE BY OR ON BEHALF OF AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT, THE RESERVES AND
LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY
PLAN, TOGETHER WITH ANY OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR ITS
AFFILIATES) OR EMPLOYEE ORGANIZATION, DO NOT EXCEED 10% OF THE TOTAL
RESERVES AND LIABILITIES OF THE INSURANCE COMPANY GENERAL ACCOUNT
(EXCLUSIVE OF SEPARATE ACCOUNT LIABILITIES),
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PLUS SURPLUS AS SET FORTH IN THE NATIONAL ASSOCIATION OF INSURANCE
COMMISSIONERS ANNUAL STATEMENT FILED WITH THE STATE OF DOMICILE OF THE
INSURER, IN ACCORDANCE WITH PROHIBITED TRANSACTION CLASS EXEMPTION 95-60,
AND THE OTHER APPLICABLE CONDITIONS OF SUCH EXEMPTION ARE OTHERWISE
SATISFIED;
(vi) TO THE EXTENT PURCHASE IS MADE BY AN IN-HOUSE ASSET MANAGER
WITHIN THE MEANING OF PART IV(A) OF PROHIBITED TRANSACTION CLASS EXEMPTION
96-23, SUCH MANAGER HAS MADE OR PROPERLY AUTHORIZED THE DECISION FOR SUCH
PLAN TO PURCHASE THIS SECURITY, UNDER CIRCUMSTANCES SUCH THAT PROHIBITED
TRANSACTION CLASS EXEMPTION 96-23 IS APPLICABLE TO THE PURCHASE AND HOLDING
OF THIS SECURITY; OR
(vii) TO THE EXTENT SUCH PURCHASE WILL NOT OTHERWISE GIVE RISE TO A
TRANSACTION DESCRIBED IN SECTION 406 OR SECTION 4975(C)(1) OF THE CODE FOR
WHICH A STATUTORY OR ADMINISTRATIVE EXEMPTION IS UNAVAILABLE.
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CHIPPAC, INC.
CUSIP: 169657 AA 1 No. 1
8% CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2011
ChipPAC, Inc., a Delaware corporation (the "COMPANY", which term shall
include any successor corporation under the Indenture referred to on the reverse
hereof), promises to pay to Citicorp Mezzanine III, L.P., or registered assigns,
the principal sum of FIFTY MILLION DOLLARS ($50,000,000) on June 15, 2011.
Interest Payment Dates: June 15 and December 15, beginning June 22, 2001
Record Dates: June 1 and December 1
This Security is convertible as specified on the other side of this
Security. Additional provisions of this Security are set forth on the other side
of this Security.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
CHIPPAC, INC.
By: /s/ XXXXXX X. XxXXXXX
-------------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Chairman, Chief Executive
Officer and President
Attest:
By: /s/ XXXXXXXX X. XxXXXX
-----------------------------------------------
Name: Xxxxxxxx X. XxXxxx
Title: Secretary
Dated:
Trustee's Certificate of Authentication: This is
one of the Securities referred to in the
within-mentioned Indenture.
FIRSTAR BANK, N.A.,
as Trustee
/s/ XXXXX X. XXXXXX XXX
-----------------------------------------------------
Authorized Signatory
By: Xxxxx X. Xxxxxx XXX
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[REVERSE SIDE OF SECURITY]
CHIPPAC, INC.
8% CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2011
1. INTEREST
ChipPAC, Inc. a Delaware corporation (the "COMPANY", which term shall
include any successor corporation under the Indenture hereinafter referred to),
promises to pay interest on the principal amount of this Security at the rate of
8% per annum. The Company shall pay interest semiannually on June 15 and
December 15 of each year, commencing December 15, 2001. Interest on the
Securities shall accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from June 22, 2001; PROVIDED, HOWEVER,
that if there is not an existing Default in the payment of interest and if this
Security is authenticated between a record date referred to on the face hereof
and the next succeeding interest payment date, interest shall accrue from such
interest payment date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Any reference herein to interest accrued or payable as
of any date shall include any Additional Interest accrued or payable on such
date as provided in the Registration Rights Agreement.
2. METHOD OF PAYMENT
The Company shall pay interest on this Security (except defaulted interest)
to the person who is the Holder of this Security at the close of business on
June 1 or December 1, as the case may be, next preceding the related interest
payment date. The Holder must surrender this Security to a Paying Agent to
collect payment of principal. The Company will pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. The Company may, however, pay principal and
interest in respect of any Certificated Security by check or wire payable in
such money; PROVIDED, HOWEVER, that a Holder with an aggregate principal amount
in excess of $2,000,000 will be paid by wire transfer in immediately available
funds at the election of such Holder. The Company may mail an interest check to
the Holder's registered address. Notwithstanding the foregoing, so long as this
Security is registered in the name of a Depositary or its nominee, all payments
hereon shall be made by wire transfer of immediately available funds to the
account of the Depositary or its nominee.
3. PAYING AGENT, REGISTRAR AND CONVERSION AGENT
Initially, Firstar Bank, N.A. (the "TRUSTEE", which term shall include any
successor trustee under the Indenture hereinafter referred to) will act as
Paying Agent, Registrar, Primary Registrar and Conversion Agent. The Company may
change any Paying Agent, Registrar or Conversion Agent without notice to the
Holder. The Company or any of its Subsidiaries may, subject to certain
limitations set forth in the Indenture, act as Paying Agent or Registrar.
4. INDENTURE, LIMITATIONS
This Security is one of a duly authorized issue of Securities of the
Company designated as its 8% Convertible Subordinated Notes Due June 15, 2011
(the "SECURITIES"), issued under an Indenture, dated as of June 15, 2001
(together with any supplemental indentures thereto, the "INDENTURE"), between
the Company and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of this Security include
those stated in the Indenture and those required by or made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended, as in
effect on the date of the Indenture. This Security is subject to all such terms,
and the Holder of this Security is referred to the Indenture and said Act for a
5
statement of them. The Securities are subordinated unsecured obligations of the
Company. Subject to the conditions set forth in Section 2.15 of the Indenture,
the Company may issue additional Securities ("ADD ON SECURITIES"). The Indenture
does not limit other debt of the Company, secured or unsecured, including Senior
Indebtedness.
5. PROVISIONAL AND OPTIONAL REDEMPTION
(a) The Company may redeem any portion of the Securities at any time prior
to June 15, 2004 (a "PROVISIONAL REDEMPTION"), upon giving notice as set forth
in Section 6, at a redemption price equal to $1,000 per $1,000 principal amount
of the Securities redeemed plus accrued and unpaid interest, if any (such
amount, the "PROVISIONAL REDEMPTION PRICE"), to but excluding the date of
redemption (the "PROVISIONAL REDEMPTION DATE") if (1) the Closing Price of the
Common Stock has exceeded 150% of the Conversion Price for at least 20 Trading
Days within a period of any 30 consecutive Trading Days ending on the Trading
Day prior to the date of mailing of the notice of Provisional Redemption (the
"NOTICE DATE"), and (2) a shelf registration statement covering resales of the
Securities and the Common Stock issuable upon conversion thereof is effective
and available for use and is expected to remain effective and available for use
for the 30 days following the Provisional Redemption Date unless registration is
no longer required.
(b) Except as set forth in clause (a) of this Section 5, the Company shall
not have the option to redeem the Securities pursuant to this Section 5 prior to
June 15, 2004. Thereafter, the Company shall have the option to redeem any
portion of the Securities (an "OPTIONAL REDEMPTION") upon giving notice as set
forth in Section 6. The Optional Redemption Prices (expressed as percentages of
the principal amount) are as follows for Securities redeemed during the periods
set forth below:
PERIOD REDEMPTION PRICE
------ ----------------
Beginning on June 15, 2004 and ending on June 14, 2005......... 104.00%
Beginning on June 15, 2005 and ending on June 14, 2006......... 103.33%
Beginning on June 15, 2006 and ending on June 14, 2007......... 102.67%
Beginning on June 15, 2007 and ending on June 14, 2008......... 102.00%
Beginning on June 15, 2008 and ending on June 14, 2009......... 101.33%
Beginning on June 15, 2009 and ending on June 14, 2010......... 100.67%
Beginning on June 15, 2010 and thereafter ..................... 100.00%
in each case together with accrued interest up to but not including the date of
redemption (the "OPTIONAL REDEMPTION DATE"); PROVIDED that if the Optional
Redemption Date falls after an interest payment record date and on or before an
interest payment date, then the interest payment will be payable to the Holders
in whose names the Securities are registered at the close of business on the
relevant record date for payment of such interest.
6. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at least 20 days
but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at its registered address. Securities in denominations
larger than $1,000 may be redeemed in part, but only in whole multiples of
$1,000. On and after the Redemption Date, subject to the deposit with the Paying
Agent of funds sufficient to pay the Redemption Price plus accrued interest, if
any, accrued to, but excluding, the Redemption Date, interest shall cease to
accrue on Securities or portions of them called for redemption.
6
7. PURCHASE OF SECURITIES AT OPTION OF HOLDER UPON A CHANGE IN CONTROL
At the option of the Holder and subject to the terms and conditions of the
Indenture, the Company shall become obligated to purchase all or any part
specified by the Holder (so long as the principal amount of such part is $1,000
or an integral multiple of $1,000 in excess thereof) of the Securities held by
such Holder on the date that is not less than 20 nor more than 30 Business Days
after the date on which the Company provides Holders notice of the occurrence of
a Change in Control (or, if the Company has not provided such, 40 Business Days
following the occurrence of a Change of Control), at a purchase price equal to
100% of the principal amount thereof together with accrued interest up to, but
excluding, the Change in Control Purchase Date. The Holder shall have the right
to withdraw any Change in Control Purchase Notice (in whole or in a portion
thereof that is $1,000 or an integral multiple of $1,000 in excess thereof) at
any time prior to the close of business on the Business Day next preceding the
Change in Control Purchase Date by delivering a written notice of withdrawal to
the Paying Agent in accordance with the terms of the Indenture.
8 CONVERSION
A Holder of a Security may convert the principal amount of such Security
(or any portion thereof equal to $1,000 or any integral multiple of $1,000 in
excess thereof) into shares of Common Stock at any time prior to the close of
business on June 15, 2011; PROVIDED, HOWEVER, that if the Security is called for
redemption or subject to purchase upon a Change in Control, the conversion right
will terminate at the close of business on the Business Day immediately
preceding the Redemption Date or the Change in Control Purchase Date, as the
case may be, for such Security or such earlier date as the Holder presents such
Security for redemption or purchase (unless the Company shall default in making
the redemption payment or Change in Control Purchase Price, as the case may be,
when due, in which case the conversion right shall terminate at the close of
business on the date such default is cured and such Security is redeemed or
purchased). The initial Conversion Price is $9.96 per share, subject to
adjustment under certain circumstances. The number of shares of Common Stock
issuable upon conversion of a Security is determined by dividing the principal
amount of the Security or portion thereof converted by the Conversion Price in
effect on the Conversion Date. No fractional shares will be issued upon
conversion; in lieu thereof, an amount will be paid in cash based upon the
Closing Price (as defined in the Indenture) of the Common Stock on the Trading
Day immediately prior to the Conversion Date. To convert a Security, a Holder
must (a) complete and manually sign the conversion notice set forth below and
deliver such notice to a Conversion Agent, (b) surrender the Security to a
Conversion Agent, (c) furnish appropriate endorsements and transfer documents if
required by a Registrar or a Conversion Agent, and (d) pay any transfer or
similar tax, if required. Securities so surrendered for conversion (in whole or
in part) during the period from the close of business on any regular record date
to the opening of business on the next succeeding interest payment date
(excluding Securities or portions thereof which are either (i) called for
redemption or (ii) subject to purchase following a Change in Control, in either
case, on a date during the period beginning at the close of business on a
regular record date and ending at the opening of business on the first Business
Day after the next succeeding interest payment date, or if such interest payment
date is not a Business Day, the second such Business Day) shall also be
accompanied by payment in funds acceptable to the Company of an amount equal to
the interest payable on such interest payment date on the principal amount of
such Security then being converted, and such interest shall be payable to such
registered Holder notwithstanding the conversion of such Security, subject to
the provisions of this Indenture relating to the payment of defaulted interest
by the Company. Except as otherwise provided in this paragraph, no payment or
adjustment will be made for accrued interest on a converted Security. If the
Company defaults in the payment of interest payable on such interest payment
date, the Company shall promptly repay such funds to such Holder. A Holder may
convert a portion of a Security equal to $1,000 or any integral multiple
thereof. A Security in respect of which a Holder had delivered a Change in
Control Purchase Notice exercising the option of such Holder to require the
Company to purchase such Security may be converted only if the Change in Control
Purchase Notice is withdrawn in accordance with the terms of the Indenture.
7
9. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION
Any Securities called for redemption, unless surrendered for conversion
before the close of business on the Business Day immediately preceding the
Redemption Date, may be deemed to be purchased from the Holders of such
Securities at an amount not less than the Redemption Price, together with
accrued interest, if any, to, but not including, the Redemption Date, by one or
more investment bankers or other purchasers who may agree with the Company to
purchase such Securities from the Holders, to convert them into Common Stock of
the Company and to make payment for such Securities to the Paying Agent in trust
for such Holders.
10. SUBORDINATION
The indebtedness evidenced by the Securities is, to the extent
and in the manner provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness of the Company.
Any Holder by accepting this Security agrees to and shall be bound by such
subordination provisions and authorizes the Trustee to give them effect. In
addition to all other rights of Senior Indebtedness described in the Indenture,
the Senior Indebtedness shall continue to be Senior Indebtedness and entitled to
the benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any terms of any instrument relating to the Senior
Indebtedness or any extension or renewal of the Senior Indebtedness.
11. DENOMINATIONS, TRANSFER, EXCHANGE
The Securities are in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000. A Holder may register the transfer of
or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes or other governmental charges that may
be imposed in relation thereto by law or permitted by the Indenture.
12. PERSONS DEEMED OWNERS
The Holder of a Security may be treated as the owner of it for
all purposes.
13. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee or Paying Agent will pay the money back to the Company at its
written request. After that, Holders entitled to money must look to the Company
for payment.
14 AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Securities then outstanding, and an existing Default
or Event of Default and its consequence or compliance with any provision of the
Indenture or the Securities may be waived in a particular instance with the
consent of the Holders of a majority in principal amount of the Securities then
outstanding. Without the consent of or notice to any Holder, the Company and the
Trustee may amend or supplement the Indenture or the Securities to, among other
things, cure any ambiguity, defect or inconsistency or make any other change
that does not adversely affect the rights of any Holder.
8
15. SUCCESSOR CORPORATION
When a successor corporation assumes all the obligations of
its predecessor under the Securities and the Indenture in accordance with the
terms and conditions of the Indenture, the predecessor corporation will (except
in certain circumstances specified in the Indenture) be released from those
obligations.
16. DEFAULTS AND REMEDIES
Under the Indenture, an Event of Default includes: (i) default for 30 days
in payment of any interest on any Securities; (ii) default in payment of any
principal (including, without limitation, any premium, if any) on the Securities
when due; (iii) failure by the Company for 60 days after notice to it to comply
with any of its other agreements contained in the Indenture or the Securities;
(iv) failure by the Company to give notice to the Trustee and Holders of a
Change in Control in accordance with the Indenture; and (v) certain events of
bankruptcy, insolvency or reorganization of the Company. If an Event of Default
(other than as a result of certain events of bankruptcy, insolvency or
reorganization of the Company) occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities then outstanding
may declare all unpaid principal to the date of acceleration on the Securities
then outstanding to be due and payable immediately, all as and to the extent
provided in the Indenture. If an Event of Default occurs as a result of certain
events of bankruptcy, insolvency or reorganization of the Company, unpaid
principal of the Securities then outstanding shall become due and payable
immediately without any declaration or other act on the part of the Trustee or
any Holder, all as and to the extent provided in the Indenture. Holders may not
enforce the Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in principal amount of the Securities then outstanding may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing Default (except a Default in payment of
principal or interest) if it determines that withholding notice is in their
interests. The Company is required to file periodic reports with the Trustee as
to the absence of Default.
17. TRUSTEE DEALINGS WITH THE COMPANY
Firstar Bank, N.A., the Trustee under the Indenture, in its individual or
any other capacity, may make loans to, accept deposits from and perform services
for the Company or an Affiliate of the Company, and may otherwise deal with the
Company or an Affiliate of the Company, as if it were not the Trustee.
18. NO RECOURSE AGAINST OTHERS
A director, officer, employee or shareholder, as such, of the Company shall
not have any liability for any obligations of the Company under the Securities
or the Indenture nor for any claim based on, in respect of or by reason of such
obligations or their creation. The Holder of this Security by accepting this
Security waives and releases all such liability. The waiver and release are part
of the consideration for the issuance of this Security.
19. AUTHENTICATION
This Security shall not be valid until the Trustee or an
authenticating agent manually signs the certificate of authentication on the
other side of this Security.
20. ABBREVIATIONS AND DEFINITIONS
Customary abbreviations may be used in the name of the Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of
9
survivorship and not as tenants in common), CUST (= Custodian) and UGMA (=
Uniform Gifts to Minors Act). All terms defined in the Indenture and used in
this Security but not specifically defined herein are defined in the Indenture
and are used herein as so defined.
21. INDENTURE TO CONTROL; GOVERNING LAW
In the case of any conflict between the provisions of this Security and the
Indenture, the provisions of the Indenture shall control. This Security shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of law.
The Company will furnish to any Holder, upon written request and without
charge, a copy of the Indenture. Requests may be made to: ChipPAC, Inc., 00000
Xxxx Xxxx, Xxxxxxx, XX 00000, Attention: Xxxxxx Xxxxxxxx.
10
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him or her.
Your Signature:
Date:
------------------------ ------------------------------------------------
(Sign exactly as your name appears on the other
side of this Security)
*Signature guaranteed by:
By:
----------------------------
* Signature(s) must be guaranteed by a qualified
guarantor institution with membership in an approved
signature guarantee program pursuant to Rule 17Ad-15 under
the Securities Exchange Act of 1934.
CONVERSION NOTICE
To convert this Security into Common Stock of the Company, check the box:
To convert only part of this Security, state the principal amount to be
converted (must be $1,000 or a multiple of $1,000): $____________.
If you want the stock certificate made out in another person's name, fill
in the form below:
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him or her.
Your Signature:
Date:
------------------------ ------------------------------------------------
(Sign exactly as your name appears on the other
side of this Security)
*Signature guaranteed by:
By:
----------------------------
* Signature(s) must be guaranteed by a qualified
guarantor institution with membership in an approved
signature guarantee program pursuant to Rule 17Ad-15 under
the Securities Exchange Act of 1934.
OPTION TO ELECT REPURCHASE
UPON A CHANGE OF CONTROL
To: ChipPAC, Inc.
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from ChipPAC, Inc. (the "COMPANY") as to the
occurrence of a Change in Control with respect to the Company and requests and
instructs the Company to redeem the entire principal amount of this Security, or
the portion thereof (which is $1,000 or an integral multiple thereof) below
designated, in accordance with the terms of the Indenture referred to in this
Security at the Change in Control Purchase Price, together with accrued interest
to, but excluding, such date, to the registered Holder hereof.
Date:
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Signature(s)
Signature(s) must be guaranteed by a
qualified guarantor institution with
membership in an approved signature
guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
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Signature Guaranty
Principal amount to be redeemed(in
an integral multiple of $1,000,
if less than all):
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NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without
alteration or any change whatsoever.
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF TRANSFER RESTRICTED SECURITIES
Re: 8% Convertible Subordinated Securities Due June 15, 2011
(the "SECURITIES") of ChipPAC, Inc.
This certificate relates to $_______ principal amount of
Securities owned in (check applicable box)
[ ] book-entry or [ ] definitive form by ________________ (the
"TRANSFEROR").
The Transferor has requested a Registrar or the Trustee to
exchange or register the transfer of such Securities.
In connection with such request and in respect of each such
Security, the Transferor does hereby certify that the Transferor is familiar
with transfer restrictions relating to the Securities as provided in Section
2.12 of the Indenture, dated as of June 15, 2001, between ChipPAC, Inc. and
Firstar Bank, N.A. (the "INDENTURE"), and the transfer of such Security is being
made pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "SECURITIES ACT") (check applicable box) or the transfer
or exchange, as the case may be, of such Security does not require registration
under the Securities Act because (check applicable box):
[ ] Such Security is being transferred pursuant to an effective
registration statement under the Securities Act.
[ ] Such Security is being acquired for the Transferor's own account,
without transfer.
[ ] Such Security is being transferred to the Company or a Subsidiary (as
defined in the Indenture) of the Company.
[ ] Such Security is being transferred to a person the Transferor
reasonably believes is a "qualified institutional buyer" (as defined in Rule
144A or any successor provision thereto ("RULE 144A") under the Securities Act)
that is purchasing for its own account or for the account of a "qualified
institutional buyer", in each case to whom notice has been given that the
transfer is being made in reliance on such Rule 144A, and in each case in
reliance on Rule 144A.
[ ] Such Security is being transferred pursuant to and in compliance with
an exemption from the registration requirements under the Securities Act in
accordance with Rule 144 (or any successor thereto) ("RULE 144") under the
Securities Act.
[ ] Such Security is being transferred pursuant to and in compliance with
an exemption from the registration requirements of the Securities Act (other
than an exemption referred to above) and as a result of which such Security
will, upon such transfer, cease to be a "restricted security" within the meaning
of Rule 144 under the Securities Act.
The Transferor acknowledges and agrees that, if the transferee
will hold any such Securities in the form of beneficial interests in a global
Security which is a "restricted security" within the meaning of Rule 144 under
the Securities Act, then such transfer can only be made pursuant to Rule 144A
under the Securities Act and such transferee must be a "qualified institutional
buyer" (as defined in Rule 144A).
Date:
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(Insert Name of Transferor)
