EXECUTION COPY
Exhibit 10.46
$50,000,000
CHIPPAC, INC.
8% CONVERTIBLE SUBORDINATED NOTES DUE JUNE 15, 2011
REGISTRATION RIGHTS AGREEMENT
June 22, 2001
Citicorp Mezzanine III, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
ChipPAC, Inc., a Delaware corporation (the "Company"), proposes to issue
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and sell to Citicorp Mezzanine III, L.P. (the "Purchaser"), upon the terms set
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forth in a purchase agreement, dated as of June 11, 2001 (the "Purchase
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Agreement"), $50,000,000 aggregate principal amount of its 8% Convertible
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Subordinated Notes due 2011 (the "Notes"). The Notes will be issued pursuant to
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an Indenture, dated as of June 15, 2001 (the "Indenture"), between the Company
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and Firstar Bank, N.A. as Trustee (the "Trustee"). Under the terms of the
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Indenture, the Notes are convertible, in whole or in part, into shares of the
Company's Class A common stock, $.01 par value per share (the "Conversion
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Shares"; the Notes and the Conversion Shares are collectively referred to as the
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"Securities"), at the option of the holders thereof at any time following the
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date of original issuance thereof at the Conversion Price (as defined in the
Notes) set forth in the Notes, as adjusted from time to time pursuant to the
Indenture.
As an inducement to the Purchaser to enter into the Purchase Agreement, the
Company agrees with the Purchaser, for the benefit of the holder(s) of the
Notes, from time to time, (including, without limitation, the Purchaser) and the
holder(s), from time to time, of the Conversion Shares (collectively, the
"Holders"), as follows:
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1. Resale Shelf Registration.
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(a) The Company shall, at its cost, use its commercially reasonable
efforts to file as promptly as practicable (but in no event more than 150
days after the Closing Date (as defined in the Purchase Agreement)) with
the Securities and Exchange Commission (the "Commission") and thereafter
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shall use commercially reasonable efforts to cause to be declared effective
a registration statement (the "Shelf Registration Statement") on an
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appropriate form under the Securities Act of 1933, as amended (the
"Securities Act"), within 220 days of the Closing Date, relating to the
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offer and sale of the Transfer Restricted Securities (as defined in Section
8(d) hereof) by the Holders thereof from time to time in accordance with
the methods of distribution set forth in the Shelf Registration
Registration Rights Agreement - Page 2
Statement and Rule 415 under the Securities Act (hereinafter, the "Shelf
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Registration"); provided, however, that no Holder (other than the
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Purchaser) shall be entitled to have the Securities held by it covered by
such Shelf Registration Statement unless such Holder agrees in writing to
be bound by all the provisions of this Agreement applicable to such Holder.
(b) The Company shall use commercially reasonable efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
relevant Transfer Restricted Securities, for a period of two (2) years (or
for such longer period if extended pursuant to Section 2(h) below or by the
last sentence of this Section 1(b)) from the date of its effectiveness or
such shorter period that will terminate when all the Transfer Restricted
Securities covered by the Shelf Registration Statement (i) have been sold
pursuant thereto or (ii) are no longer Transfer Restricted Securities as
defined in Section 8(d) hereof (in any such case, such period being called
the "Shelf Registration Period"). The Company shall be deemed not to have
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used its commercially reasonable efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes any
action that would result in Holders of Securities covered thereby not being
able to offer and sell such Transfer Restricted Securities during that
period, unless (i) such action is required by applicable law or (ii) upon
the occurrence of any event contemplated by Section 2(b)(v) below, such
action is taken by the Company in good faith and for valid business reasons
and the Company thereafter complies with the requirements of Section 2(h)
hereof. Notwithstanding anything herein to the contrary, to the extent the
Shelf Registration Statement is declared effective prior to the 180th day
following the Closing Date, the period of effectiveness of such Shelf
Registration Statement provided for in this Section 1(b) shall be extended
by the number of days in the period from the effectiveness date of such
Shelf Registration Statement to the 180th day following the Closing Date.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(d) Each Holder agrees that if such Holder wishes to sell such
Holder's Transfer Restricted Securities pursuant to a Shelf Registration
Statement and related prospectus, it will do so in accordance with this
Section 1(d). Each Holder wishing to sell Transfer Restricted Securities
pursuant to a Shelf Registration Statement and related prospectus agrees to
deliver a Notice and Questionnaire (the form of which is attached as Annex
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A hereto) to the Company. The Company will include in the Shelf
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Registration Statement as a selling securityholder each Holder that
delivers such properly completed Notice and Questionnaire as of or prior to
the Closing Date. The Company will use its commercially reasonable efforts
to include in the Shelf Registration Statement any Holder which fails to
provide such properly completed Notice and Questionnaire as of or
Registration Rights Agreement - Page 3
prior to the Closing Date but otherwise provides such properly completed
Notice and Questionnaire prior to the commencement of the Shelf
Registration Period. Except as described above and below, the Company shall
have no obligation to include in the Shelf Registration Statement a Holder
which fails to provide the Company with such properly completed Notice and
Questionnaire as of or prior to the Closing Date. From and after the date
the Shelf Registration Statement is declared effective, the Company shall,
as promptly as is practicable after the date a properly completed Notice
and Questionnaire is delivered, and in any event within thirty (30) days
after such date, (i) if required by law, file with the Commission a post-
effective amendment to the Shelf Registration Statement or prepare and, if
required by applicable law, file a supplement to the related prospectus or
a supplement or amendment to any document incorporated therein by reference
or file any other required document so that the Holder delivering such
Notice and Questionnaire is named a selling securityholder in the Shelf
Registration Statement and the related prospectus in such a manner as to
permit such Holder to deliver such prospectus to purchasers of the Transfer
Restricted Securities in accordance with applicable law and, if the Company
shall file a post-effective amendment to the Shelf Registration Statement,
use all commercially reasonable efforts to cause such post-effective
amendment to be declared effective under the Securities Act as promptly as
practical, but in any event by the date that is thirty (30) business days
after the date such post-effective amendment is required by this clause to
be filed; (ii) provide such Holder copies of any documents filed pursuant
to Section 1(d)(i); and (iii) notify such Holder as promptly as practicable
after the effectiveness under the Securities Act of any post-effective
amendment filed pursuant to Section 1(d)(i); provided, that if such Notice
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and Questionnaire is delivered during a period in which the use of such
prospectus is suspended pursuant to Section 2(h) hereof, the Company shall
so inform the Holder delivering such Notice and Questionnaire and shall
take the actions set forth in clauses (i), (ii) and (iii) above upon
expiration of such suspension period. Notwithstanding anything contained
herein to the contrary, the Company shall be under no obligation to name
any Holder that has not supplied the requisite information as required by
and in accordance with the procedures and time periods set forth in this
Section 1(d) as a selling securityholder in any Shelf Registration
Statement and related prospectus and any amendment or supplement thereto.
2. Shelf Registration Procedures. In connection with any Shelf
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Registration contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company shall (i) furnish to the Purchaser, prior to the
filing thereof with the Commission, a copy of the Shelf Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and, the Company shall use its best efforts to
reflect in each such document, when so filed with the Commission, such
comments as the Purchaser reasonably may propose and (ii) include the names
of the Holders, who propose to sell Transfer Restricted Securities pursuant
to the Shelf Registration Statement, as selling securityholders; provided,
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that the Purchaser and Holders have complied with Section 1(d).
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(b) The Company shall give written notice to the Purchaser and the
Holders of the Transfer Restricted Securities included within the coverage
of the Shelf Registration Statement (which notice pursuant to clauses (ii)-
(v) hereof shall be accompanied by an
Registration Rights Agreement - Page 4
instruction to suspend the use of the prospectus until the requisite
changes have been made):
(i) when the Shelf Registration Statement or any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of
the Transfer Restricted Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to
make changes in the Shelf Registration Statement or the prospectus in
order that the Shelf Registration Statement or the prospectus do not
contain an untrue statement of a material fact nor omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the prospectus, in light of the
circumstances under which they were made) not misleading, which
written notice need not provide any detail as to the nature of such
event.
(c) The Company shall make every commercially reasonable effort to
obtain the withdrawal at the earliest possible time, of any order
suspending the effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, at least one
copy of the Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder
so requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(e) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Transfer Restricted Securities included within the
coverage of such Shelf Registration, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such
person may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any amendment
or supplement thereto by each of the selling Holders of the Transfer
Restricted Securities in connection with the offering and sale of the
Transfer Restricted Securities covered by the prospectus, or any amendment
or supplement thereto, included in the Shelf Registration Statement.
Registration Rights Agreement - Page 5
(f) Prior to any public offering of the Securities pursuant to the
Shelf Registration Statement, the Company shall register or qualify or
cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification of
the Transfer Restricted Securities for offer and sale under the securities
or "blue sky" laws of such states of the United States as any Holder of the
Securities reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Shelf Registration
Statement; provided, however, that the Company shall not be required to (i)
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qualify generally to do business in any jurisdiction where it is not then
so qualified or (ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction where it is not then
so subject.
(g) The Company shall cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates representing
the Securities to be sold pursuant to the Shelf Registration Statement free
of any restrictive legends and in such denominations and registered in such
names as the Holders may request a reasonable period of time prior to sales
of the Securities pursuant to such Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 2(b) above during the period for which the Company
is required to maintain an effective Shelf Registration Statement, the
Company shall as required hereby prepare and file a post-effective
amendment to such Shelf Registration Statement or a supplement to the
related prospectus and any other required document so that, as thereafter
delivered to Holders of the Securities or purchasers of Securities included
within the coverage of such Shelf Registration Statement, the prospectus
will not contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company may delay filing
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and distributing any such supplement or amendment (and continue the
suspension of the use of the related prospectus) if the Company determines
in good faith that such supplement or amendment would, in the reasonable
judgement of the Company, (i) interfere with or affect the negotiation or
completion of a transaction that is being contemplated by the Company or
(ii) involve initial or continuing disclosure obligations that are not in
the best interests of the Company's stockholders at such time; provided,
further, that neither such delay nor such suspension shall extend for a
period of more than 90 consecutive days or an aggregate of 180 days in any
twelve-month period. If the Company notifies the Purchaser and the Holders
of the Securities in accordance with paragraphs (ii) through (v) of Section
2(b) above to suspend the use of such prospectus until the requisite
changes to such prospectus have been made, then the Purchaser and the
Holders of the Securities shall suspend use of such prospectus, and the
period of effectiveness of such Shelf Registration Statement provided for
in Section 1(b) above shall be extended by the number of days from and
including the date of the giving of such notice to and including the date
when the Purchaser and the Holders of the Securities shall have received
such amended or supplemented prospectus pursuant to this Section 2(h).
Registration Rights Agreement - Page 6
(i) Not later than the effective date of the Shelf Registration
Statement, the Company will provide CUSIP numbers for the Notes and the
Conversion Shares registered under the Shelf Registration Statement and
provide the Trustee with a certificate for the Notes, in a form eligible
for deposit with The Depository Trust Company.
(j) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration to enable the Holders to resell their securities in accordance
with this Agreement.
(k) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), in a
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timely manner and containing such changes, if any, as shall be necessary
for such qualification. In the event that such qualification would require
the appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
(l) Each Holder agrees, by acquisition of the Securities, that no
Holder of Securities shall be entitled to sell any of such Securities
pursuant to any Shelf Registration Statement or to receive a prospectus
relating thereto, unless such Holder has furnished the Company with a
Notice and Questionnaire as required pursuant to and in accordance with
Section 1(d) hereof and the information set forth in the next sentence.
Each Holder agrees promptly to furnish the Company all information required
to be disclosed in order to make the information previously furnished to
the Company by such Holder not misleading and any other information
regarding such Holder and the distribution of such Securities as the
Company may from time to time reasonably request.
(m) In the event of any underwritten public offering, the Company
shall enter into such customary agreements (including, if requested, an
underwriting agreement in customary form) and take all such other action,
if any, as any managing underwriter of such offering and Holder of the
Securities shall reasonably request in order to facilitate the disposition
of the Securities pursuant to any Shelf Registration; provided, however,
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that the Company shall not be required to facilitate an underwritten
offering pursuant to a Shelf Registration Statement by any Holders unless
the offering relates to at least $20,000,000 principal amount of the Notes
or an equivalent number of Conversion Shares (as adjusted for any stock
dividends, stock splits and capital changes).
(n) The Company shall (i) make reasonably available for inspection by
any underwriter participating in any disposition pursuant to the Shelf
Registration Statement and any agent retained by any such underwriter all
relevant financial and other records, pertinent corporate documents and
properties of the Company and (ii) cause the Company's officers, directors,
employees, accountants and auditors to supply all relevant information
reasonably requested by any such underwriter or agent in connection with
the Shelf Registration Statement, in each case, as shall be reasonably
necessary to enable such persons, to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; provided, however,
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that the foregoing inspection and information
Registration Rights Agreement - Page 7
gathering shall be coordinated on behalf of the Purchaser by you and the
other parties, by one firm of counsel, which firm shall be designated as
described in Section 6 hereof.
(o) In the event of an underwritten offering, the Company shall cause
(i) its counsel to deliver an opinion and updates thereof relating to the
Securities in customary form and substance addressed to the managing
underwriters thereof and dated, in the case of the initial opinion, the
effective date of such Shelf Registration Statement; (ii) its executive
officers and directors to execute and deliver all customary documents and
certificates and updates thereof requested by any underwriters of the
applicable Securities and (iii) the independent public accountants for
which financial information is provided in the Shelf Registration Statement
to provide to the selling Holders of the applicable Transfer Restricted
Securities and any underwriter therefor a comfort letter in customary form,
type and substance customarily covered in comfort letters in connection
with primary underwritten offerings.
(p) The Company shall use its commercially reasonable efforts to take
all other steps necessary to effect the registration of the Securities
covered by a Shelf Registration Statement contemplated hereby.
3. Demand Registration.
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(a) From and after the second anniversary of the Closing Date,
Holders of at least 50% of the outstanding Transfer Restricted Securities,
subject to Section 3(e) below, (the "Initiating Holders") may request, in
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writing, registration under the Securities Act of all or part of their
Transfer Restricted Securities. Within 10 days after receipt of any such
request, the Company will give notice of such request to all other Holders
of Transfer Restricted Securities ("Other Holders"). Thereafter, the
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Company will use all commercially reasonable efforts to effect the
registration on an appropriate form under the Securities Act and will
include in such registration, subject to Section 3(e) below, all Transfer
Restricted Securities held by the Initiating Holders and Other Holders with
respect to which the Company has received written requests for inclusion
therein within 15 days after the receipt of the Company's notice. All
registrations initiated by an Initiating Holder pursuant to this Section
3(a) are referred to herein as "Demand Registrations." Notwithstanding
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anything herein to the contrary, the Company need not effect any requested
Demand Registration unless the expected gross proceeds of such registration
exceed $15,000,000.
(b) Notwithstanding anything in Section 3(a) above to the contrary,
the Company shall not be obligated to take any action to effect any such
registration pursuant to Section 3(a) above:
(i) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in
effecting such registration, unless the Company is already subject to
service in such jurisdiction and except as may be required by the
Securities Act;
Registration Rights Agreement - Page 8
(ii) During the period starting with the date sixty (60) days
prior to the Company's estimated date of filing of, and ending on one
hundred twenty (120) days immediately following the effective date of,
any registration statement pertaining to securities of the Company
(other than a registration of securities in a Rule 145 transaction or
with respect to an employee benefit plan), provided that the Company
is actively employing in good faith all reasonable effects to cause
such registration statement to become effective;
(iii) After the Company has effected two (2) such registrations
pursuant to Section 3(a), and such registrations have been declared or
ordered effective;
(iv) If the Company shall furnish to such Holders a certificate
signed by the Chief Executive Officer of the Company stating that in
the good faith judgment of the Board of Directors it would be
seriously detrimental to the Company or its stockholders for a
registration statement to be filed in the near future, then the
Company's obligation to use its commercially reasonable efforts to
comply under Section 3(a) shall be deferred for a period not to exceed
one hundred eighty (180) days from the date of receipt of written
request from an Initiating Holder; provided that the Company may not
exercise this deferral right more than once per twelve (12) month
period.
(c) A registration requested pursuant to Section 3(a) shall not be
deemed to have been effected (i) unless a registration statement with
respect thereto has been declared effective by the Commission, (ii) if
after it has become effective, such registration is interfered with by any
stop order, injunction or the order or requirement of the Commission or
other governmental agency or court for any reason, and, as a result
thereof, the Transfer Restricted Securities covered thereby have not been
sold or (iii) the registration statement does not remain effective for a
period expiring the earlier of 90 days after the effective date thereof or
the completion of the distribution of the Transfer Restricted Securities
included in such registration statement. The Holders of the Transfer
Restricted Securities shall be permitted to withdraw all or any part of the
Transfer Restricted Securities from a Demand Registration at any time prior
to the effective date of such Demand Registration; provided that in the
event of, and concurrently with such withdrawal, the Holders responsible
for such Demand Registration shall either (i) pay or reimburse the Company
for all fees and expenses (including counsel fees and expense) incurred by
them and the Company prior to such withdrawal or (ii) agree to forfeit one
of its Demand Registration rights hereunder.
(d) In the event that a registration pursuant to Section 3(a) is for
a registered public offering involving an underwriting, the Company shall
so advise the Holders as part of the notice given pursuant to Section 3(a).
In such event, the right of any Holder to registration pursuant to Section
3(a) shall be conditioned upon such Holder's participation in the
underwriting arrangements required by this Section 3, and the inclusion of
such Holder's Transfer Restricted Securities in the underwriting to the
extent requested shall be limited to the extent provided herein. The
Company shall (together with all Holders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter
Registration Rights Agreement - Page 9
selected for such underwriting by the Initiating Holder, but subject to the
Company's reasonable approval.
(e) If the Company includes in any underwritten Demand Registration
any securities which are not Transfer Restricted Securities and the
managing underwriters advise the Company in writing that in their opinion
the number of Transfer Restricted Securities proposed to be included
exceeds the number of Transfer Restricted Securities and other securities
which can be sold in such offering, the Company will include in such
registration (i) first, the Transfer Restricted Securities requested to be
included which, in the opinion of such underwriters, can be sold, by the
Initiating Holders initiating the Demand Registration, (ii) second, the
Transfer Restricted Securities proposed to be included in such registration
by the Other Holders exercising their registration rights hereunder, pro
rata based upon the total number of Transfer Restricted Securities which
such Other Holders propose to include in such registration and (iii) third,
the securities proposed to be included in such registration by any other
holders as determined by the Company and the managing underwriters.
4. Piggyback Registration.
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(a) From and after the second anniversary of the Closing Date,
whenever the Company proposes to register any securities substantially
similar to the Transfer Restricted Securities under the Securities Act
(other than on S-8 or any successor forms), and the form of registration
statement to be used may be used for the registration of Transfer
Restricted Securities (a "Piggyback Registration"), the Company will give
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notice to all Holders of Transfer Restricted Securities of the intention to
effect such a registration and will include in such registration, subject
to Sections 4(c) and 4(d) below, all Transfer Restricted Securities with
respect to which the Company has received written requests for inclusion
therein. Such requests for inclusion shall be in writing and delivered to
the Company within 15 days after the Holders' receipt of such notice and
shall specify the number of Transfer Restricted Securities intended to be
disposed of and the intended method of distribution thereof. Any Holder of
Transfer Restricted Securities shall have the right to withdraw its request
for inclusion of its Transfer Restricted Securities in any registration
statement pursuant to this Section 4(a) by giving written notice to the
Company of its request to withdraw. The Company may withdraw a Piggyback
Registration at any time prior to the time it becomes effective.
(b) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to
Section 4(a). In such event the right of any Holder to registration
pursuant to Section 4(a) shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of Transfer Restricted
Securities in the underwriting to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders distributing their
securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter selected for such
underwriting by the Company.
Registration Rights Agreement - Page 10
(c) If a Piggyback Registration is an underwritten primary
registration on behalf of the Company, and the managing underwriters advise
the Company that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold in such
offering, the Company will include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, the securities
proposed to be included in such registration by the holders (including
Holders of Transfer Restricted Securities) of the same securities proposed
to be sold by the Company and (iii) third, the securities proposed to be
included in such registration by the holders (including Holders of Transfer
Restricted Securities) of substantially the same securities proposed to be
sold by the Company, in each of clauses (ii) and (iii) pro rata among such
holders exercising their respective piggyback registration rights thereof
based upon the total number of securities which such holders beneficially
own.
(d) If a Piggyback Registration is an underwritten secondary
registration on behalf of holders (other than the Holders of the Transfer
Restricted Securities) of the Company's securities, and the managing
underwriters advise the Company that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration (i) first, the securities which such initiating holders
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propose to sell; (ii) second, the securities the Company proposed to be
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included in such registration; (iii) third, the securities proposed to be
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included in such registration by the holders (including Holders of Transfer
Restricted Securities) of the same securities proposed to be sold by such
initiating holders and (iv) fourth, the securities proposed to be included
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in such registration by the holders (including Holders of Transfer
Restricted Securities) of substantially the same securities proposed to be
sold by such initiating holders, in each of clauses (iii) and (iv) pro rata
among any such holders exercising their respective piggyback registration
rights thereof based upon the total number of securities which such holders
beneficially own.
5. Demand and Piggyback Registration Procedures. In the case of each
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registration effected by the Company pursuant to Sections 3 and 4, the Company
will keep each Holder advised in writing as to the initiation of each
registration and as to the completion thereof. At its expense the Company will:
(a) With respect to Demand Registrations, the Company shall use its
commercially reasonable efforts to file as promptly as practicable (but in
no event more than 120 days after the date the Company is in receipt of
written requests by the Other Holders for inclusion in such Demand
Registration (the "Demand Initiation Date")) and thereafter shall use
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commercially reasonable efforts to cause to be declared effective a
registration statement on an appropriate form under the Securities Act,
within 180 days after the Demand Initiation Date, relating to the offer and
sale of the Transfer Restricted Securities;
(b) Furnish to the Holders participating in such registration and to
the underwriters of the securities being registered such reasonable number
of copies of the Registration Statement, preliminary prospectus, final
prospectus and such other
Registration Rights Agreement - Page 11
documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities;
(c) Prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection with such registration statements as may be necessary to comply
with the provisions of the Securities Act with respect to the disposition
of all Transfer Restricted Securities covered by such registration
statement;
(d) Use its commercially reasonable efforts to register and qualify
the securities covered by such registration statement under such other
securities or "blue sky" laws of such jurisdictions as shall be reasonably
requested by the Holders, provided that the Company shall not be required
in connection therewith or as a condition thereto to qualify to do business
or to file a general consent to service of process in any such states or
jurisdictions; and
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each
Holder participating in such underwriting shall also enter into and perform
its obligations under such an agreement.
6. Registration Expenses. Except as set forth in clause (i) of Section
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3(c), the Company shall bear all fees and expenses incurred by it in connection
with the performance of its obligations under Sections 1, 3 and 4 hereof whether
or not a Registration Statement is filed or becomes effective. In connection
with any Registration Statement, the participating Holders shall be responsible
for the payment of any and all underwriters' and brokers' and dealers'
discounts, selling commissions, any applicable stock transfer taxes and, except
as set forth in clause (i) of Section 3(c) and as set forth below, all fees and
disbursements of counsel, accountants or other advisors for any Holder and any
other fees and expenses not covered by the preceding sentence. In connection
with the Shelf Registration Statement and the applicable Registration Statement
for one (1) Demand Registration, the Company shall bear or reimburse the Holders
of the Securities covered thereby for reasonable fees and disbursements of not
more than one (1) counsel chosen by the Holders of a majority in principal
amount of the Securities covered thereby to act as counsel for the Holders in
connection therewith. For purposes of this Agreement, "Registration Statement"
----------------------
shall mean the Shelf Registration Statement and any applicable registration
statement in connection with Demand and Piggyback Registrations.
7. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless each Holder of
the Securities, each agent representative, employee, officer and director
of any such Holder, and each person, if any, who controls such Holder
within the meaning of the Securities Act or the Exchange Act (each Holder
and such persons are referred to collectively as the "Indemnified Parties")
-------------------
from and against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not limited to,
any losses, claims, damages, liabilities or actions relating to purchases
and sales of the Securities) to which each Indemnified Party may become
subject under the Securities Act, the Exchange Act
Registration Rights Agreement - Page 12
or otherwise, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in a Registration Statement
or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Registration Statement, or arise out
of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse, as incurred, the
Indemnified Parties for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action in respect thereof; provided, however, that (i)
-------- -------
the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made
in a Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Registration
Statement in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company by or on behalf of
such Holder specifically for inclusion therein and (ii) with respect to any
untrue statement or omission or alleged untrue statement or omission made
in any preliminary prospectus relating to a Registration Statement, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any Holder from whom the person asserting any such losses,
claims, damages or liabilities purchased the Securities concerned, to the
extent that a prospectus relating to such Securities was required to be
delivered by such Holder under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of such Holder
results from the fact that there was not sent or given to such person, at
or prior to the written confirmation of the sale of such Securities to such
person, a copy of the final prospectus if the Company had previously
furnished copies thereof to such Holder; provided further, however, that
-------- ------- -------
this indemnity agreement will be in addition to any liability which the
Company may otherwise have to such Indemnified Party. The Company shall
also indemnify underwriters, their officers and directors and each person
who controls such underwriters within the meaning of the Securities Act or
the Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders of the Securities if requested by such
Holders.
(b) Each Holder, severally and not jointly, will indemnify and hold
harmless the Company, its officers, directors and each person, if any, who
controls the Company within the meaning of the Securities Act or the
Exchange Act from and against any losses, claims, damages or liabilities or
any actions in respect thereof, to which the Company or any such
controlling person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Registration Statement, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, but
in each case only to the extent that the untrue statement or omission or
alleged untrue statement or omission was made in reliance upon and in
conformity with written information pertaining to such Holder and furnished
to the Company by or on behalf of such Holder specifically for inclusion
therein; and, subject to the limitation set forth
Registration Rights Agreement - Page 13
immediately preceding this clause, shall reimburse, as incurred, the
Company for any legal or other expenses reasonably incurred by the Company
or any such controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof.
This indemnity agreement will be in addition to any liability which such
Holder may otherwise have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a)
or (b) above. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal
or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the
defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release
of such indemnified party from all liability on any claims that are the
subject matter of such action, and does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party. No indemnified party shall effect any settlement of any
pending or threatened action without the prior written consent of the
indemnifying party, which such consent shall not be unreasonably withheld
or delayed.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other
from the sale of the Securities, pursuant to the Registration Statement, or
(ii) if the allocation provided by the foregoing clause (i) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying party or parties on the one
hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be
determined by
Registration Rights Agreement - Page 14
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one
hand or such Holder or such other indemnified party, as the case may be, on
the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding any other provision of this Section 7(d),
the Holders shall not be required to contribute any amount in excess of the
amount by which the net proceeds received by such Holders from the sale of
the Securities pursuant to a Registration Statement exceeds the amount of
damages which such Holders have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this paragraph (d), each person, if any, who controls such
indemnified party within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as such indemnified party
and each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act shall have the same rights to
contribution as the Company.
(e) The agreements contained in this Section 7 shall survive the sale
of the Securities pursuant to a Registration Statement and shall remain in
full force and effect, regardless of any termination or cancellation of
this Agreement or any investigation made by or on behalf of any indemnified
party.
8. Additional Interest Under Certain Circumstances.
------------------------------------------------
(a) Additional interest (the "Additional Interest") with respect to
-------------------
the Securities (except with respect to (iii) below, which such Additional
Interest shall only apply to the Securities held by the affected Holder(s))
shall be assessed as follows if any of the following events occur (each
such event in clauses (i) through (v) below being herein called a
"Registration Default"):
---------------------
(i) If on or prior to the 150th day after the Closing Date (as
defined in the Purchase Agreement), the Shelf Registration Statement
has not been filed with the Commission;
(ii) If on or prior to the 220th day after the Closing Date (as
defined in the Purchase Agreement), the Shelf Registration Statement
has not been declared effective by the Commission;
(iii) The Company fails with respect to a Holder of Notes that
supplies the Notice and Questionnaire described in Section 1(d) above
to amend or
Registration Rights Agreement - Page 15
supplement the Shelf Registration Statement in the manner set forth in
Section 1(d) above;
(iv) If after the Shelf Registration Statement is declared
effective, such Shelf Registration Statement or the related prospectus
ceases to be usable in connection with resales of Transfer Restricted
Securities during the periods specified herein because the Company
suspends the effectiveness of such Shelf Registration Statement beyond
the periods set forth in Section 2(h) above;
(v) If after the Shelf Registration Statement is declared
effective, such Registration Statement or the related prospectus
ceases to be usable in connection with resales of Transfer Restricted
Securities during the periods specified herein and the Company fails
to cure the Shelf Registration Statement within fifteen (15) business
days by filing a post-effective amendment or report pursuant to the
Exchange Act;
(vi) If on or prior to the 120th day after the Demand Initiation
Date, a registration statement relating to the applicable Demand
Registration has not been filed with the Commission; or
(vii) If on or prior to the 180th day after the Demand
Initiation Date, a registration statement relating to the applicable
Demand Registration has not been declared effective by the Commission.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission.
Additional Interest shall accrue on the Notes and Conversion Shares
that are Transfer Restricted Shares over and above the interest set forth in the
title of the Securities from and including the date on which any such
Registration Default shall occur to but excluding the date on which all such
Registration Defaults have been cured, at a rate of 0.50% per annum (the
"Additional Interest Rate").
-------------------------
(b) A Registration Default referred to in Section 8(a)(v) hereof
shall be deemed not to have occurred and be continuing in relation to a
Shelf Registration Statement or the related prospectus if (i) such
Registration Default has occurred solely as a result of (x) the filing of a
post-effective amendment to such Shelf Registration Statement to
incorporate annual audited financial information with respect to the
Company where such post-effective amendment is not yet effective and needs
to be declared effective to permit Holders to use the related prospectus or
(y) other material events with respect to the Company that would need to be
described in such Shelf Registration Statement or the related prospectus
and (ii) in the case of clause (y), the Company is proceeding promptly and
in good faith to amend or supplement such Shelf Registration Statement and
related prospectus to describe such events; provided, however, that in any
-----------------
case if such Registration Default occurs for a continuous period in excess
of 30 days, Additional Interest shall be payable in accordance with the
above
Registration Rights Agreement - Page 16
paragraph from the day such Registration Default occurs until such
Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section 8(a)
above will be payable in cash to the "Record Holder" (as defined in Section
-------------
8(d) below) on the "Damages Payment Dates" (as defined in Section 8(d)
---------------------
below) with respect to the Notes and the Conversion Shares. The amount of
Additional Interest will be determined by (1) multiplying the applicable
Additional Interest Rate by (x) in the case of the Notes, the "Applicable
----------
Principal Amount" (as defined in Section 8(d) below) or (y) in the case of
----------------
the Conversion Shares, the "Applicable Conversion Price" (as defined in
---------------------------
Section 8(d) below) and then (2) multiplying the product of the calculation
set forth in (c)(1) above by a fraction, the numerator of which is the
number of days such Additional Interest Rate was applied during such period
(determined on the basis of a 360 day year comprised of twelve 30-day
months), and the denominator of which is 360.
(d) The following terms shall have the following meaning(s):
The term "Applicable Conversion Price" means the Applicable Principal
---------------------------
Amount divided by the Conversion Price set forth in the Notes, as adjusted from
time to time pursuant to the Indenture, in effect as of the next succeeding June
15 or December 15 following such Registration Default in the case of the first
such payment of Additional Interest with respect to a Registration Default (and
thereafter at the next succeeding June 15 or December 15 until the cure of such
Registration Default) or, if no Notes are then outstanding, the last Conversion
Price that was in effect when the Notes were last outstanding.
The term "Applicable Principal Amount" with respect to each $1,000
---------------------------
principal amount of maturity of Notes means the initial issue price of such Note
($1,000) through the next succeeding June 15 or December 15 following such
Registration Default in the case of such payment of Additional Interest with
respect to a Registration Default (and thereafter at the next succeeding June 15
or December 15 until the cure of such Registration Default) or, if no Notes are
then outstanding, such sum calculated as if such Notes were then outstanding.
The term "Damages Payment Date" means each June 15 or December 15 in
--------------------
the case of the Notes and the Conversion Shares.
The term "Record Holder" means with respect to any Damages Payment
-------------
Date relating to any Note or Conversion Shares as to which any Additional
Interest has accrued, the registered holder of such Note or Conversion Shares,
as the case may be, fifteen (15) days prior to the next succeeding Damages
Payment Date.
The term "Transfer Restricted Securities" means each Security until
------------------------------
the earliest of (i) the date on which such Security has been effectively
registered under the Securities Act and disposed of in accordance with the Shelf
Registration Statement, (ii) to the extent such Security is held by a non-
affiliate of the Company, the date on which such Security may be sold by the
Holder thereof to the public pursuant to Rule 144 under the Securities Act,
(iii) to the extent such Security is held by an affiliate of the Company, the
date on which such Security is sold by the Holder thereof to the public pursuant
to Rule 144 under the Securities Act or (iv) the date on
Registration Rights Agreement - Page 17
which such Security is saleable by the Holder thereof pursuant to Rule 144(k)
under the Securities Act. Notwithstanding anything herein to the contrary, the
registration rights granted hereunder shall terminate as to each Holder and with
respect to such Securities upon the date that such Securities are no longer
Transfer Restricted Securities.
9. SEC Filings. The Company shall use its best efforts to file the
-----------
reports required to be filed by it under the Securities Act and the Exchange Act
in a timely manner and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Securities, make publicly
available other information so long as necessary to permit sales of their
securities pursuant to Rule 144. The Company covenants that it will take such
further action as any Holder of Securities may reasonably request, all to the
extent required from time to time to enable such Holder to sell Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144. The Company will provide an executed
counterpart of this Agreement to prospective purchasers of the Notes identified
to the Company by the Purchaser upon request. Upon the request of any Holder of
Notes, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 9 shall be deemed to require the Company to register any
of its securities pursuant to the Exchange Act.
10. Underwritten Registrations. If any of the Transfer Restricted
--------------------------
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("Managing Underwriters") will be selected by
---------------------
the Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering and such selection shall
be subject to the Company's consent, which shall not be unreasonably withheld or
delayed.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
11. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company will not on or
after the date of this Agreement enter into any agreement with respect
to its securities that is inconsistent or conflicts with the legal
rights granted to the Holders in this Agreement. The rights granted to
the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date hereof.
Notwithstanding anything herein to the contrary, the Company shall not
be limited or in any way prevented from entering into any agreement
granting any holder or prospective holder of any securities of the
Company registration rights with respect to such securities that do
not conflict with the registration rights of the Holders hereunder.
Registration Rights Agreement - Page 18
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company has
obtained the written consent of the Holders of a majority of the then
outstanding Conversion Shares constituting Transfer Restricted
Securities (with Holders of Notes deemed to be the Holders, for
purposes of this Section 11(b), of the number of outstanding shares of
Conversion Shares into which such Notes are or would be convertible or
exchangeable as of the date on which such consent is requested).
Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to
the rights of Holders of Transfer Restricted Securities whose
securities are being sold pursuant to a Shelf Registration Statement
and that does not directly or indirectly affect the rights of other
Holders of Transfer Restricted Securities may be given by Holders of
at least a majority of the Transfer Restricted Securities being sold
by such Holders pursuant to such Shelf Registration Statement;
provided, however, that the provisions of this sentence may not be
-------- -------
amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence; provided, further,
-------- -------
without the consent of each Holder, no amendment, modification or
supplement may alter the provisions relating to the payment of
Additional Interest. Each Holder of Transfer Restricted Securities
outstanding at the time of any such amendment, modification,
supplement, waiver or consent or thereafter shall be bound by any such
amendment, modification, supplement, waiver or consent effected
pursuant to this Section 11, whether or not any notice, writing or
marking indicating such amendment, modification, supplement, waiver or
consent appears on the Transfer Restricted Securities or is delivered
to such Holder. Each Holder may waive compliance with respect to any
obligation of the Company under this Agreement as it may apply or be
enforced by such particular Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air courier which
guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Purchaser:
Citicorp Mezzanine III, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: General Partner
Registration Rights Agreement - Page 19
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxxxx, Esq.
Zechariah Xxxxxxx Xxxxxxx XX, Esq.
(3) if to the Company, at its address as follows:
ChipPAC, Inc.
00000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxx Xxxxx, Esq.
(for all notices other than Selling Security
Holder Notice and Questionnaire)
Xxxxxxx Xxx, Esq.
Xxxx Xxxx, Esq.
(for all Selling Securityholder Notice
and Questionnaire)
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(d) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Purchaser, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including, without limitation and without the need for an express
assignment, subsequent Holders; provided,
--------
Registration Rights Agreement - Page 20
however, that this Agreement shall not inure to the benefit of or be
-------
binding upon a successor or assign of a Holder unless and to the extent
such successor or assign acquired Transfer Restricted Securities from such
Holder; and provided, further that nothing herein shall be deemed to permit
-------- -------
any assignment, transfer or any disposition of Transfer Restricted
Securities in violation of the terms of the Purchase Agreement. If any
transferee of any Holder shall acquire Transfer Restricted Securities, in
any manner, whether by operation of law or otherwise, such Transfer
Restricted Securities shall be held subject to all of the terms of this
Agreement and by taking and holding such Transfer Restricted Securities
such person shall be conclusively deemed to have agreed to be bound by and
to perform all of the terms and provisions of this Agreement and such
Person shall be entitled to receive the benefits hereof.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
(i) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) Securities Held by the Company. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates (other
than the Purchaser and subsequent Holders of Securities if such subsequent
Holders are deemed to be affiliates solely by reason of their holdings of
such Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
(k) Standoff Agreement. In connection with the public offering of any
of the Company's debt or equity securities, each Holder and its affiliates
(so long as they beneficially own at least five percent (5%) of the capital
stock of the Company) agrees, that upon request of the Company or the
underwriters managing any underwritten offering of the Company's
securities, not to sell, make any short sale of, loan, grant any option
for the purchase of, or otherwise dispose of any Securities without the
prior written consent of the Company or such underwriters, as the case may
be, for such period of time (not to exceed 120 days) from the effective
date of such registration statement as may be requested by the
underwriters; provided that the (i) executive officers and directors of the
Company who own securities of the Company and (ii) holders of five percent
(5%) or more of the capital stock of the Company also agree to such
restrictions.
Signature Page to Registration Rights Agreement
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Purchaser and the Company in accordance with its terms.
Very truly yours,
CHIPPAC, INC.
By:_________________________________________
Name: Xxxxxx X. XxXxxxx
Title: Chairman of the Board, President and
Chief Executive Officer
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CITICORP MEZZANINE III, L.P.
By: Citicorp Capital Investors, Limited, its general partner
By:_________________________________
Name:
Title:
ANNEX A
CHIPPAC, INC.
QUESTIONNAIRE FOR BENEFICIAL OWNERS REGARDING
SECURITIES TO BE INCLUDED IN SHELF REGISTRATION STATEMENT
The following questions (the "Questionnaire") elicit information to prepare
-------------
(i) the Registration Statement on Form S-3 (the "Shelf Registration Statement")
----------------------------
registering for resale the Company's 8% Convertible Subordinated Notes due 2011
(the "Notes"), on behalf of the beneficial owners thereof, and the Class A
-----
Common Stock, par value, $0.01 per share, of the Company (the "Common Stock")
------------
issuable upon conversion of the Notes (the "Notes Stock") (collectively, the
-----------
"Securities"), filed by ChipPAC, Inc. (the "Company") with the Securities
----------- -------
Exchange Commission in accordance with the rights granted to you and the other
holders of Notes and/or Notes Stock (collectively, "Selling Securityholders")
-----------------------
pursuant to the Registration Rights Agreement, dated June 22, 2001, by and
between the Company and the purchaser party thereto (the "Registration Rights
-------------------
Agreement") and (ii) other securities documents which may be required in
---------
connection with the Shelf Registration Statement. By electing to sell the
Securities pursuant to the Shelf Registration Statement you agree to be bound by
the terms of the Registration Rights Agreement.
Because the information provided in this Questionnaire will be used in
connection with the preparation of documents to be filed with state and federal
agencies, it should be accurate, complete and true, and not omit any material or
important information.
By execution of this Questionnaire, you agree to notify the Company's legal
counsel as promptly as practicable of any inaccuracy or change in information
previously furnished by you to the Company or the occurrence of any event in
either case as a result of which any Prospectus included in such Shelf
Registration Statement contains or would contain an untrue statement of a
material fact regarding you or your intended method of distribution of such
Securities necessary to make the statements therein, in light of the
circumstances then existing, not misleading, and you agree promptly to furnish
to the Company's legal counsel any additional information required to correct
and update any previously furnished information or required so that such
Prospectus shall not contain, with respect to you or the distribution of
Securities held by you that are included in the Shelf Registration Statement, an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances then existing, not
misleading.
Each beneficial owner of the Notes is being furnished with two copies of
this Questionnaire. Please complete and execute one copy and return it to the
Company's legal counsel, Xxxxxxxx & Xxxxx, 000 Xxxxx Xxxxxxxx Xxxxxx, 00/xx/
Xxxxx, Xxx Xxxxxxx, XX 00000, Attention: Xxxxxxx Xxx and Xxxx Xxxx, on or before
the date of the initial issuance of the Notes (the "Closing Date"). By
------------
executing this Questionnaire, you hereby consent to being named in the Shelf
Registration Statement and to the presentation of all information furnished
herein which is required to be disclosed in the Shelf Registration Statement.
PURSUANT TO THE TERMS OF THE REGISTRATION RIGHTS AGREEMENT, YOU ARE
OBLIGATED TO INDEMNIFY THE COMPANY IF THE INFORMATION YOU PROVIDE HEREIN IS
INACCURATE OR MISLEADING.
SECURITIES WILL NOT BE INCLUDED IN THE SHELF REGISTRATION STATEMENT UNLESS
YOU COMPLETE THIS QUESTIONNAIRE, SIGN IT AND DELIVER A COPY TO THE COMPANY'S
LEGAL COUNSEL IN THE MANNER DESCRIBED HEREIN AND PROMPTLY NOTIFY THE COMPANY'S
LEGAL COUNSEL OF ANY CHANGES TO THE INFORMATION CONTAINED HEREIN.
A-1
INSTRUCTIONS FOR COMPLETION OF QUESTIONNAIRE:
Please answer each question fully. Give the most exact and accurate
answers possible. If your response to any of the questions presented below is
negative or if any of the questions are not applicable, please so state in the
space provided. Please sign and date the Questionnaire. Certain terms used
herein are defined in Appendix A hereto, which should be referred to in
completing this Questionnaire.
1. General
State your full name as it should appear in any filings made.
NAME OF SELLING SECURITYHOLDER:_________________________________________________
SOCIAL SECURITY NUMBER OR FEDERAL EMPLOYER I.D.NUMBER:__________________________
BUSINESS ADDRESS:_______________________________________________________________
RESIDENCE ADDRESS: _____________________________________________________________
TELEPHONE NUMBER: ______________________________________________________________
Business: ___________________________________
Fax: ________________________________________
If an entity, please indicate principal contact for questions:
NAME: ____________________________________
ADDRESS: _________________________________
TELEPHONE NUMBER: ________________________
FAX NUMBER: ______________________________
2. Please describe the nature of the business you or your organization
conducts.
3. Please state your current position, office or other relationship with the
Company (or its predecessors or affiliates) and any position, office or
other relationship with the Company (or its predecessors or affiliates)
during the past three years.
4. If you hold any or all of the Notes or Notes Stock on behalf of another
person or entity, please state the full name(s) and address(es) of such
person(s) or entity(ies) and the amount(s) so held.
5. Check the box which represents the CUSIP Number of the Notes that you hold.
[_] 144A Global Note; CUSIP Number:
A-2
[_] ___________________________________
6. Please state the amount of Notes and/or Notes Stock owned of record by you.
Notes:________________________________
Notes Stock:__________________________
7. Please state the amount of Notes and/or Notes Stock for which you are the
beneficial owner and the record owner.
Notes:________________________________
Notes Stock:__________________________
8. Please state the amount of Notes and Notes Stock for which you are the
beneficial owner, but not the record owner.
Notes:________________________________
Notes Stock:__________________________
Please include the name and address of the record owner and your relationship to
the record owner.
Notes:_________________________________
Notes Stock:___________________________
9. If any other person or entity shares voting or investment power with you
with respect to the Notes or Notes Stock listed in questions 6, 7 and 8
above, please
a. briefly identify the person or entity,
b. give the principal amount or number subject to shared voting power or
investment power and
c. summarize the arrangement.
10. Are any of the Notes or Notes Stock owned by you subject to any pledge or
other contractual arrangement?
No ____Yes ____
If yes, please explain such pledge or other contractual arrangement.
11. Please describe any other rights to purchase Notes or Notes Stock that you
have.
12. Please state the amount of Notes and Notes Stock to be offered for your
account in the Shelf Registration Statement.
Notes: ______________________________
Notes Stock: _________________________
13. Have you entered into any agreement, arrangement or understanding with a
broker or dealer with respect to the offering of the Notes or Notes Stock
to be registered in the Shelf Registration Statement?
A-3
No ____Yes ____
If yes, please set forth the terms of any such agreement, arrangement or
understanding (including without limitation volume limitations on sales, parties
to the agreement, arrangement or understanding and conditions under which the
agreement, arrangement or understanding may be terminated) below.
14. Identify any broker(s) or dealer(s) participating in the offering of Notes
or Notes Stock to be offered for your account and state the amount of Notes
and Notes Stock to be offered by each such broker.
15. Set forth below any discounts or commissions, if any, to be allowed or paid
to dealers in connection with the sale of the Notes or Notes Stock to be
offered for your account.
16. Identify any finder known to you to be involved with the distribution of
the Notes or Notes Stock to be offered for your account and, if applicable,
the finder's relationship with the Company or its officers, directors,
principal shareholders, finders or promoters.
17. Attached as Appendix B hereto is a description of a plan of distribution
that is intended to be used, in substantially the form of Appendix B, in
the Shelf Registration Statement. Please indicate whether anything stated
in Appendix B is inaccurate or misleading with respect to your plan to
distribute the Notes and Note Stock owned by you or whether Appendix B
omits to state any information about your plan of distribution.
No ___Yes ____
If yes, describe below specifically in what manner Appendix B is inaccurate
or misleading, Please also describe below any additional information about your
plan to distribute the Notes and Notes Stock that you own.
A-4
CERTIFICATION
The information set forth above is supplied by the undersigned in response
to the request of the Company and may be used in connection with the Shelf
Registration Statement. The undersigned hereby affirms that such information is
correct as of the date hereof. The undersigned will promptly notify the
Company's legal counsel of any changes in such information, whether such change
occurred subsequent hereto and prior to the filing or effectiveness of the Shelf
Registration Statement or after the Shelf Registration Statement is filed or
becomes effective. The undersigned understands and agrees that this
Questionnaire, as completed by him or her, and any further communications by him
or her regarding the matters contemplated herein, will be relied upon by the
Company, its legal counsel, and the representatives of any underwriters and
their counsel, in connection with filings related to the Shelf Registration
Statement.
The undersigned understands that material misstatements or the omission of
material facts in the Shelf Registration Statement may give rise to civil and
criminal liabilities for the Company, each officer and director of the Company
signing the Shelf Registration Statement and other persons signing such
document.
Signature of Holder/1/ ________________________________________
Please type or print name and title, if any:___________________
Date: _______________
RETURN COMPLETED QUESTIONNAIRE ON OR BEFORE THE CLOSING DATE TO:
Xxxxxxx Xxx, Esq.
Xxxx Xxxx, Esq.
Xxxxxxxx & Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
00/xx/ Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
________________________________
/1/ If this Questionnaire is being completed by or on behalf of a person other
than an individual, the entity on whose behalf the Questionnaire is being
completed should be stated.
A-5
APPENDIX A
1. Arrangement. Any plan, contract, arrangement or understanding,
whether or not set forth in a formal document.
2. Associate. The term "associate" means:
(a) Any corporation or organization, except the Company and its
majority-owned subsidiaries, of which you are an executive officer or
partner or of which you, together with other officers or directors of the
Company, are, directly or indirectly, the beneficial owner of 10% or more
of any class of equity securities.
(b) Any trust or other estate in which you have a substantial
beneficial interest or as to which you serve as trustee or in a similar
fiduciary capacity.
(c) Any relative, your spouse or any relative of your spouse who
resides with you or who is a director or officer of the Company or its
subsidiaries.
3. Beneficial Owner. A "beneficial owner" of securities is any person
who, directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise has or shares:
(a) Voting power, which includes the power to vote, or to direct the
voting of, such security; and/or,
(b) Investment power, which includes the power to dispose or direct
the disposition of, such security.
Furthermore, a "beneficial owner" of a security includes any person who has
the right to acquire beneficial ownership of such security at any time within
sixty (60) days. The right to acquire beneficial ownership could (but need not
necessarily) be through (i) the exercise of any option, warrant or right, (ii)
the conversion of a security, (iii) a power to revoke or automatic termination
of a trust, discretionary account, or similar arrangement, or (iv) otherwise.
A "beneficial owner" also includes any person who, directly or indirectly,
creates or uses a trust, proxy, power of attorney, pooling arrangement or any
other contract, arrangement or device with the purpose or effect of divesting
such person of beneficial ownership of a security or preventing the vesting of
such beneficial ownership as part of a plan to evade the reporting requirements
of any federal or state securities act.
Securities owned beneficially would include not only securities held by you
for your own benefit, whether in bearer form or registered in your own name or
otherwise, but would also include securities held by others for your benefit or
securities from which you obtain benefits substantially equivalent to those of
ownership (regardless of whether or how they are registered), such as, for
example, securities held for you by banks or other custodians, brokers (whether
in your name, their name or in "street name"), executors, administrators, or
trustees (including trusts in which you have only a remainder interest) and
securities held for your account by pledgees, and securities owned by a
partnership in which you are a member, and securities owned by any corporation
in which you and your associates own 10% or more of the stock. A person is
deemed to be the beneficial owner of securities beneficially owned by his
spouse, his minor children, or any relative sharing his home.
"Indirectly," when used to refer to beneficial ownership of securities,
means ownership through another such as a controlled corporation, member of the
family, estate, trust, partnership or other entity.
