Exhibit 17
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VOTING AGREEMENT
among
ST ASSEMBLY TEST SERVICES LTD
and the
STOCKHOLDERS OF CHIPPAC, INC.
identified on the signature pages hereto
Dated as of February 10, 2004
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VOTING AGREEMENT
VOTING AGREEMENT, dated as of February 10, 2004 (this "AGREEMENT"),
among ST ASSEMBLY TEST SERVICES LTD, a Singapore public company limited by
shares ("PARENT"), and the stockholders (each a "STOCKHOLDER") of ChipPAC, Inc.,
a Delaware corporation (the "COMPANY"), identified on the signature pages
hereto.
WHEREAS, Parent, Camelot Merger, Inc., a Delaware corporation and a
wholly-owned subsidiary of Parent ("MERGER SUB"), and the Company are entering
into an Agreement and Plan of Merger and Reorganization dated as of the date
hereof (as amended from time to time, the "MERGER AGREEMENT"; capitalized terms
used but not defined in this Agreement shall have the meanings ascribed to them
in the Merger Agreement), with the Company, pursuant to which Merger Sub will
merge with and into the Company (the "MERGER");
WHEREAS, as of the date hereof, the Stockholders are the record and
beneficial owner of the number of Shares (as defined below) set forth opposite
each Stockholder's name in EXHIBIT A hereto (the "EXISTING SHARES" and, together
with any shares of Company Class A Common Stock acquired by Stockholders after
the date hereof, whether upon the exercise of warrants, options, conversion of
convertible securities, or by means of purchase, dividend, distribution,
split-up, recapitalization, combination, exchange of shares, gift, bequest,
inheritance or as a successor in interest in any capacity or otherwise, and any
shares into which or for which any or all of the Existing Shares and additional
shares may be changed or exchanged, the "SHARES"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement and incurring the obligations set forth therein, Parent has required
that the Stockholders agree to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
VOTING AGREEMENT
SECTION 1.01. VOTING AGREEMENT. (a) Each Stockholder hereby agrees
that, from and after the date hereof and until the earlier to occur of the
events set forth in Section 4.01, at every meeting of the stockholders of the
Company, however called, and at every adjournment thereof, and in every action
by consent of the stockholders of the Company, such Stockholder shall, provided
that such Stockholder has not received notice from Parent (which notice may be
delivered at any such meeting) stating Parent's intention to exercise the Proxy
at such meeting, appear at any such meeting or otherwise cause the Shares to be
counted as present thereat for purposes of establishing a quorum, and shall vote
or consent (or cause to be voted or consented) such Stockholder's Shares: (i) in
favor of the approval and adoption of the Merger Agreement,
the Merger and the other Transactions and otherwise in such manner as may be
necessary to consummate the Merger; and (ii) except as otherwise agreed to in
writing in advance by Parent, against any action, proposal, agreement or
transaction, including, but not limited to, any Competing Transaction (other
than the Merger Agreement and the Merger), the purpose or effect of which would
be to prevent, delay, postpone or materially adversely affect the Merger. In all
other matters, the Shares shall be voted by and in a manner determined by such
Stockholder.
(b) If a Stockholder fails for any reason to vote such
Stockholder's Shares as required by Section 1.01(a), the holder of the Proxy (as
defined below) shall have the right to vote such Stockholder's Shares at any
meeting of the Company's stockholders and in any action by written consent of
the Company's stockholders in accordance with Section 1.01(a) and the Proxy. The
vote of a holder of the Proxy shall control in any conflict between a vote of
such Stockholder's Shares by a holder of the Proxy and a vote of such
Stockholder's Shares by such Stockholder with respect to the matters set forth
in Section 1.01(a).
(c) Each Stockholder hereby agrees that such Stockholder shall not
enter into any agreement or understanding with any person the effect of which
would be inconsistent with or violative of any provision contained in Section
1.01(a), 1.01(b) or 1.02.
(d) This Agreement shall only apply to actions taken by the
undersigned in such Stockholder's capacity as a Stockholder and no provision of
this Agreement shall limit or otherwise restrict any Stockholder with respect to
any act or omission that such Stockholder may undertake or authorize in such
Stockholder's capacity as a director or officer of the Company, including,
without limitation, any vote by the Stockholder in such Stockholder's capacity
as a director or officer of the Company with respect to any matter presented to
the Company Board.
SECTION 1.02. IRREVOCABLE PROXY. Concurrently with the execution of
this Agreement, each Stockholder has delivered to Parent a proxy in the form
attached as EXHIBIT B hereto (the "PROXY"), which such Stockholder agrees shall
be irrevocable to the fullest extent permissible by Law, with respect to the
Shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each Stockholder hereby severally represents and warrants to Parent as
follows:
SECTION 2.01. ORGANIZATION, QUALIFICATION. (a) Such Stockholder, if
it is an individual, has all legal capacity to enter into this Agreement and to
deliver the Proxy and to carry out his or her obligations hereunder.
(b) Such Stockholder, if it is a corporation or other legal
entity, is duly organized, validly existing and, if applicable, in good standing
under the Laws of the jurisdiction of its incorporation or formation and has the
requisite power and authority and all necessary governmental approvals to
execute and deliver this Agreement and perform its obligations under this
Agreement.
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SECTION 2.02. AUTHORITY RELATIVE TO THIS AGREEMENT. Such Stockholder
has all necessary power and authority to execute and deliver this Agreement and
the Proxy and to perform such Stockholder's obligations hereunder. This
Agreement and the Proxy have been duly and validly executed and delivered by
such Stockholder and, assuming due execution and delivery of this Agreement by
Parent, constitute legal, valid and binding obligations of such Stockholder,
enforceable against such Stockholder in accordance with their terms.
SECTION 2.03. NO CONFLICT. (a) The execution and delivery of this
Agreement and the Proxy by such Stockholder do not, and the performance of this
Agreement and the Proxy by such Stockholder shall not, (i) conflict with or
violate the certificate of incorporation or by-laws or equivalent organizational
documents of such Stockholder (if such Stockholder is a corporation or other
legal entity), (ii) assuming satisfaction of the requirements set forth in
Section 2.03(b) below, conflict with or violate the terms of any trust
agreements or equivalent organizational documents of such Stockholder (if such
Stockholder is a trust), (iii) conflict with or violate any Law applicable to
such Stockholder or by which the Shares owned by such Stockholder are bound or
affected or (iv) result in any breach of, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or result in the creation of a lien or encumbrance on any of the Shares owned by
such Stockholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which such Stockholder is a party or by which such Stockholder or the Shares
owned by such Stockholder are bound or affected, except for any such conflicts,
violations, breaches, defaults or other occurrences that would not, individually
or in the aggregate, prevent or materially delay such Stockholder from
performing its obligations under this Agreement and the Proxy.
(b) The execution and delivery of this Agreement and the Proxy by
such Stockholder does not, and the performance of this Agreement and the Proxy
by such Stockholder shall not, require any consent, approval, authorization or
permit of any Governmental Authority on the part of such Stockholder.
SECTION 2.04. TITLE TO COMPANY SECURITIES. (a) As of the date hereof,
such Stockholder is the record and beneficial owner of the number of Shares and
the outstanding principal amount of the 2.50% Convertible Notes and the 8%
Convertible Notes (the "COMPANY CONVERTIBLE SUBORDINATED NOTES", and together
with the Shares, the "COMPANY SECURITIES"), in each case, as set forth opposite
such Stockholder's name on EXHIBIT A hereto. Except as set forth on EXHIBIT A,
such Company Securities are, now and, at all times during the term hereof will
be, all the securities of the Company owned either of record or beneficially, by
such Stockholder. The Company Securities owned by such Stockholder are now and,
at all times during the term hereof will be, owned free and clear of all Liens,
other than any Liens created by this Agreement. Except as provided in this
Agreement, such Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Shares owned by
such Stockholder.
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(b) To the knowledge of such Stockholder, no person controlled by
such Stockholder (excluding any other Stockholder) is the record or beneficial
owner of 2% or more of the outstanding Company Securities.
SECTION 2.05. INFORMATION PROVIDED. (a) To the knowledge of such
Stockholder, after due inquiry, none of the information relating to such
Stockholder specifically provided by or on behalf of such Stockholder for
inclusion in the Registration Statement will, at the time the Proxy Statement is
filed with the SEC or sent or given to stockholders of the Company, contain any
untrue statement of material fact or omit to state any 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 in any material
respect.
(b) To the knowledge of such Stockholder, after due inquiry, none
of the information relating to such Stockholder specifically provided by or on
behalf of such Stockholder for inclusion in the Parent Shareholders Circular
will, at the time the Parent Shareholders Circular is filed with the SGX-ST or
sent or given to shareholders of Parent, contain any untrue statement of
material fact or omit to state any 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 in any material
respect.
ARTICLE III
COVENANTS OF STOCKHOLDERS
SECTION 3.01. NO DISPOSITION OR ENCUMBRANCE OF COMPANY SECURITIES.
Each Stockholder hereby agrees that during the term of this Agreement, except as
contemplated by this Agreement and the Merger Agreement, such Stockholder shall
not (a) sell, transfer, tender, assign, pledge, encumber, contribute to the
capital of any entity, hypothecate, give or otherwise dispose of, grant a proxy
or power of attorney with respect to, deposit into any voting trust or enter
into a voting arrangement or agreement, or create or permit to exist any Liens
of any nature whatsoever with respect to, any of such Stockholder's Company
Securities (or agree or consent to, or offer to do, any of the foregoing), (b)
take any action that would have the effect of preventing or adversely affecting
such Stockholder from performing such Stockholder's obligations hereunder or (c)
directly or indirectly, initiate, solicit or encourage any person to take
actions that could reasonably be expected to lead to the occurrence of any of
the foregoing. Notwithstanding anything to the contrary contained herein, any
Stockholder and/or one or more of such Stockholder's affiliates shall be allowed
to sell, transfer, assign or otherwise dispose of any of such Stockholder's
Company Securities to the extent such disposition or dispositions would prevent
such Stockholder from being a "five percent transferee shareholder" as defined
in Section 1.367(a)-3(c)(5)(ii) of the Regulations as of the Effective Time (a
"5% SHAREHOLDER"). In determining the amount of Company Securities permitted to
be disposed: (y) such Stockholder may make reasonable factual assumptions and
apply a reasonable interpretation of U.S. tax law based on the advice of
counsel; and (z) the relevant U.S. income tax provisions should be applied by
substituting "4.9 percent" for "five percent" in Section 1.367(a)-3(c)(5)(ii) of
the Regulations. Parent hereby agrees to provide any relevant data as may be
reasonably requested by such
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Stockholder for the purpose of determining whether such Stockholder or any
affiliate would be a 5% Shareholder.
SECTION 3.02. NO SOLICITATION OF TRANSACTIONS. Each Stockholder
agrees that, between the date of this Agreement and the date of termination of
the Merger Agreement in accordance with its terms, such Stockholder shall not,
and shall not permit any of its subsidiaries or any of its or its subsidiaries'
directors, officers or employees to, and shall use its best efforts to cause the
investment bankers, attorneys, accountants and other representatives retained by
it or any of its subsidiaries not to, directly or indirectly: (i) solicit,
initiate or knowingly encourage (including by way of furnishing nonpublic
information), or take any other action knowingly to facilitate, any inquiries or
the making of any proposal or offer that constitutes a Competing Transaction;
(ii) enter into or maintain or continue discussions or negotiations with any
person or entity in furtherance of such inquiries or to obtain a Competing
Transaction; (iii) agree to, approve, endorse or recommend any Competing
Transaction or enter into any letter of intent or other contract, agreement or
commitment contemplating or otherwise relating to any Competing Transaction; or
(iv) authorize or permit any of the officers, directors or employees of such
Stockholder or any of its subsidiaries, or any investment banker, financial
advisor, attorney, accountant or other representative retained by such
Stockholder, to take any such action. Each Stockholder shall notify Parent as
promptly as practicable (and in any event within two days after any senior
executive of such Stockholder attains knowledge thereof; PROVIDED, HOWEVER, that
if such senior executive is a director of the Company, the notice to Parent
required by this Section 3.02 shall be provided within one day after such senior
executive attains knowledge thereof) if any proposal or offer, or any inquiry or
contact with any person with respect thereto, regarding a Competing Transaction
is made, specifying the material terms and conditions thereof and the identity
of the party making such proposal or offer or inquiry or contact. Each
Stockholder immediately shall cease and cause to be terminated all existing
discussions or negotiations with any parties conducted heretofore with respect
to a Competing Transaction. Nothing in this Section 3.02 shall prevent any
Stockholder from acting in such Stockholder's capacity as an officer or director
of the Company, or taking any action in such capacity (including at the
direction of the Company Board).
SECTION 3.03. FURTHER ACTION; REASONABLE BEST EFFORTS. Upon the terms
and subject to the conditions hereof, each of the parties shall use its
reasonable best efforts to take, or cause to be taken, all appropriate action,
and to do, or cause to be done, all things necessary, proper or advisable under
applicable Laws and regulations to consummate and make effective this Agreement,
including, without limitation, using its reasonable best efforts to obtain all
Permits, consents, approvals, authorizations, qualifications and orders of
Governmental Authorities and parties to contracts with the Company and the
subsidiaries as are necessary for the consummation of this Agreement.
SECTION 3.04. ADDITIONAL SHARES. Each Stockholder agrees, while this
Agreement is in effect, to give a prompt written notice to Parent of the number
of any new Shares acquired by such Stockholder after the date hereof.
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SECTION 3.05. DISCLOSURE. Each Stockholder hereby agrees to permit
Parent and the Company to publish and disclose in the Registration Statement,
the Proxy Statement and the Parent Shareholders Circular (including all
documents and schedules filed with the SEC or the SGX-ST), and in any press
release or other disclosure document in which Parent and the Company reasonably
determine in their good faith judgment that such disclosure is required by Law,
including the rules and regulations of the SEC, or is appropriate, in connection
with the Merger and the other Transactions, such Stockholder's identity and
ownership of the Company Class A Common Stock and the nature of such
Stockholder's commitments, arrangements and understandings under this Agreement,
subject to Parent or the Company using its reasonable best efforts to consult
with the Stockholder and to give the Stockholder the right to review and comment
on any such disclosure.
SECTION 3.06. PUBLIC ANNOUNCEMENT. Each Stockholder agrees to not
make any public announcement in opposition to, or in competition with, the
Merger Agreement or the consummation of the Merger.
SECTION 3.07. LIMITATIONS ON SALE OF PARENT ORDINARY SHARES. (a) From
the date of this Agreement until 90 days after the date of the Effective Time,
each Stockholder agrees not to sell, transfer, tender, assign, pledge, encumber,
contribute to the capital of any entity, hypothecate, give or otherwise dispose
of, or enter into any put, call, forward purchase contract or forward sale
contract or any other contract, agreement or arrangement having the effect of
decreasing or eliminating the risk of ownership with respect to, any Parent
Ordinary Shares or Parent ADSs (or agree or consent to, or offer to do, any of
the foregoing); PROVIDED, HOWEVER, that (i) each Stockholder may transfer Parent
Ordinary Shares or Parent ADSs to an affiliate of such Stockholder if such
affiliate agrees in writing to comply with the provisions of this Section 3.07;
(ii) each Stockholder may sell, during any three-month period, such number of
Parent Ordinary Shares (whether in the form of Parent Ordinary Shares or Parent
ADSs) equal to the maximum number of Parent Ordinary Shares that such
Stockholder would be permitted to sell during such three-month period in
accordance with Rule 144(e) under the Securities Act, assuming that the Parent
Ordinary Shares were quoted on Nasdaq and that such rule applied to all sales by
the Stockholder and regardless of whether such rule applies; (iii) each
Stockholder may transfer Parent Ordinary Shares or Parent ADSs to any transferee
in a transaction consummated in accordance with any private placement exemption
from the registration requirements of the Securities Act if such transferee
agrees in writing to comply with the provisions of this Section 3.07; and (iv)
each Stockholder listed on EXHIBIT C hereto may transfer Parent Ordinary Shares
or Parent ADSs to such Stockholder's limited partners, owners or equity holders
provided that such transfer complies with the provisions of Rule 145 of the
Securities Act.
(b) Each Stockholder acknowledges and agrees that there will be
placed on the Parent ADRs evidencing the Parent ADSs issued in the Merger to
such Stockholder, or any substitutions thereof (including, without limitation,
any Parent Ordinary Shares issued in exchange for such Parent ADSs), a legend
stating in substance:
THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A
TRANSACTION TO WHICH RULE 145
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PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, APPLIED. THE
SHARES REPRESENTED BY THIS CERTIFICATE MAY ONLY BE TRANSFERRED IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT, DATED FEBRUARY 10, 2004,
AMONG PARENT, THE REGISTERED HOLDER HEREOF AND THE OTHER PARTIES
IDENTIFIED ON THE SIGNATURE PAGE THERETO, A COPY OF WHICH IS ON FILE
AT THE PRINCIPAL OFFICES OF PARENT.
SECTION 3.08. TERMINATION OF OTHER AGREEMENTS. (a) Each Stockholder
(i) agrees that, from and after the Effective Time, such Stockholder shall not,
and shall cause its affiliates not to, exercise or seek to enforce any of its or
its affiliates' rights under the Amended and Restated Registration Agreement,
dated as of August 5, 1999 (the "REGISTRATION AGREEMENT"), among the Company and
the other parties listed on the signature page thereto, as amended, or the
Amended and Restated Shareholders Agreement, dated as of August 5, 1999 (the
"SHAREHOLDERS AGREEMENT"), among the Company and the other parties listed on the
signature page thereto, as amended, and (ii) shall, and shall cause its
affiliates to, execute and deliver such documents as Parent may reasonably
request to terminate such agreements effective as of the Effective Time.
(b) Parent agrees that, from and after the Effective Time, Parent
shall not, and shall cause its subsidiaries not to, exercise or seek to enforce
any of its or its subsidiaries' rights under the Registration Agreement or the
Shareholders Agreement.
SECTION 3.09. REVIEW OF AGREEMENTS. Each Stockholder agrees that such
Stockholder has carefully read this Agreement and the Merger Agreement and
discussed the requirements of such documents and other applicable limitations
upon such Stockholder's ability to vote the Shares and sell, transfer or
otherwise deal with such Stockholder's Company Securities to the extent such
Stockholder felt necessary, with such Stockholder's counsel. Such Stockholder
has not relied upon Xxxxxxxx & Xxxxx LLP, counsel for the Company, or Shearman &
Sterling LLP, counsel to Parent, in connection with such Stockholder's decision
to execute this Agreement or otherwise in connection with any other document or
agreement such Stockholder has entered into in connection with the Merger
Agreement or the Transactions.
ARTICLE IV
TERMINATION
SECTION 4.01. TERMINATION. This Agreement, and all rights and
obligations of the parties hereunder (except with respect to Section 3.07
hereof) shall terminate upon the earliest of (a) the Effective Time, (b) the
termination of the Merger Agreement in accordance with its terms, (c) as between
Parent and a Stockholder, the date of execution of any supplement, amendment or
modification of (including any waiver of any provision of) the Merger Agreement
(but excluding any consent of either Parent or the Company contemplated by
Article V of the Merger Agreement) (each, an "AMENDMENT"), that is materially
adverse to such Stockholder,
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unless such Stockholder has given its prior written consent to the terms of such
Amendment, and (d) as between Parent and a Stockholder, agreement of Parent and
such Stockholder to terminate this Agreement. Upon termination of this Agreement
in accordance with its terms, the Proxy shall be void and of no further force
and effect. Nothing in this Section 4.01 shall relieve any party of liability
for any breach of this Agreement.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. AMENDMENT. This Agreement may not be amended except by
an instrument in writing signed by all the parties hereto.
SECTION 5.02. WAIVER. Any party to this Agreement may (i) extend the
time for the performance of any obligation or other act of any other party
hereto, (ii) waive any inaccuracy in the representations and warranties of
another party contained herein or in any document delivered pursuant hereto and
(iii) waive compliance with any agreement of another party contained herein. Any
such extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
SECTION 5.03. NOTICES. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly given upon receipt) by delivery in person, by
facsimile or email or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at
such other address for a party as shall be specified in a notice given in
accordance with this Section 5.03):
(a) if to a Stockholder, to the address set forth after such
Stockholder's name on the signature pages;
(b) if to Parent:
ST Assembly Test Services Ltd
00 Xxx Xx Xxx Xxxxxx 00
#00-00/00 Xxxxxxxxx
Xxxxxxxxx 000000
Facsimile No. (x00) 0000-0000
Attention: Tan Lay Koon
Email: xxxxxxxxxx@xxxxx.xx.xxx.xx
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with copies to:
Xxxxx & Xxxxxxxx
00 Xxxxxxxx Xxxx
#00-00 Xxxx Xxxxx
Xxxxxxxxx 000000
Facsimile No. (x00) 0000-0000
Attention: Xxxxxx Xxxx
Email: xxxxxx.xxxx@xxxxxxxxxxxxxxxx.xxx
Shearman & Sterling LLP
0 Xxxxxxx Xxxx, #00-00
Xxxxxxxxx 000000
Facsimile No. (x00) 0000-0000
Attention: Xxxx X. Xxxx, Esq.
Email: xxxxx@xxxxxxxx.xxx
and
Shearman & Sterling LLP
0000 Xxxxx Xxxx
Xxxxx Xxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Email: xxxxxxxx@xxxxxxxx.xxx
(c) if to the Company:
ChipPAC, Inc.
00000 Xxxx Xxxx
Xxxxxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxxxx X. XxXxxx
Email: xxxxxxxx.x.xxxxxx@xxxxxxx.xxx
with a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxx Xxxxx
Email: xxxxxx@xxxxxxxx.xxx
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Rajah & Xxxx
0 Xxxxxxx Xxxx, #00-00
Xxxx xx Xxxxx Xxxxxxxx,
Xxxxxxxxx 000000
Facsimile No. (x00) 0000-0000
Attention: Xxxx Xxxx Tan
Email: xxxx.xxxx.xxx@xxxxxxxxx.xxx
SECTION 5.04. SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of Law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated by this Agreement is not affected in
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated by this Agreement
be consummated as originally contemplated to the fullest extent possible.
SECTION 5.05. FURTHER ASSURANCES. The Stockholders will execute and
deliver all such further documents and instruments and take all such further
action as may be necessary in order to consummate the transactions contemplated
hereby.
SECTION 5.06. ASSIGNMENT. This Agreement shall not be assigned by
operation of Law or otherwise, except that Parent may assign all or any of its
rights and obligations hereunder to any affiliate of Parent; PROVIDED that no
such assignment shall relieve the assigning party of its obligations hereunder
if such assignee does not perform such obligations.
SECTION 5.07. PARTIES IN INTEREST. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
SECTION 5.08. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 5.09. GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware applicable
to contracts executed in and to be performed in that State. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined exclusively in any Delaware Chancery Court or federal court located
in the State of Delaware. The parties hereto hereby (a) submit to the
jurisdiction of any Delaware Chancery Court or federal court located in the
State of Delaware for the purpose of any Action arising out of or relating to
this Agreement brought by any party hereto, and (b) irrevocably waive, and agree
not to assert by way of motion, defense, or otherwise, in any
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such Action, any claim that it is not subject personally to the jurisdiction of
the above-named courts, that its property is exempt or immune from attachment or
execution, that the Action is brought in an inconvenient forum, that the venue
of the Action is improper, or that this Agreement may not be enforced in or by
any of the above-named courts.
SECTION 5.10. EXPENSES. All costs and expenses, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses.
SECTION 5.11. HEADINGS. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 5.12. COUNTERPARTS. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION 5.13. BENEFICIAL OWNER. In this Agreement, "beneficial owner"
has the meaning ascribed to that term in Rule 13d-3(a) of the Exchange Act, and
"beneficially owned" has a consequent meaning.
SECTION 5.14. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY WITH RESPECT TO ANY ACTIONS OR PROCEEDINGS DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 5.14.
SECTION 5.15. INDEPENDENT NATURE OF EACH STOCKHOLDER'S OBLIGATIONS
AND RIGHTS. The obligations of each Stockholder under this Agreement are several
and not joint with the obligations of any other Stockholder, and no Stockholder
shall be responsible in any way for the performance of the obligations of any
other Stockholder under this Agreement. Nothing contained in this Agreement and
no action taken by any Stockholder pursuant hereto shall be deemed to constitute
the Stockholders as a partnership, an association, a joint venture or any other
kind of entity, or create a presumption that the Stockholders are in any way
acting in concert or as a group with respect to such obligations or the
transactions contemplated by this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ST ASSEMBLY TEST SERVICES LTD
/s/ Tan Lay Koon
--------------------------------------------
Name: Tan Lay Koon
Title: President and Chief Executive Officer
Address: 00 Xxx Xx Xxx Xxxxxx 00
#00-00/00 Xxxxxxxxx
Xxxxxxxxx 000000
STOCKHOLDERS:
CITICORP VENTURE CAPITAL LTD.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
Address: 000 Xxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000
CITICORP MEZZANINE III, L.P.
By: CITICORP CAPITAL INVESTORS, LTD.,
as its General Partner
/s/ Xxxxx Xxxxx
--------------------------------------------
Name: Xxxxx Xxxxx
Title: President
Address: 000 Xxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000
XXXX CAPITAL, L.L.C.
/s/ Xxxxxxx Xxxx
--------------------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer and Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
BCIP ASSOCIATES II-B
By: XXXX CAPITAL INVESTORS, LLC,
as its Managing General Partner
/s/ Xxxxxxx Xxxx
--------------------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer and Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
BCIP TRUST ASSOCIATES II, L.P.
By: XXXX CAPITAL INVESTORS, LLC,
as its Managing General Partner
/s/ Xxxxxxx Xxxx
--------------------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer and Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
BCIP TRUST ASSOCIATES II-B
By: XXXX CAPITAL INVESTORS, LLC,
as its Managing General Partner
/s/ Xxxxxxx Xxxx
--------------------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer and Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By: SANKATY HIGH YIELD ASSET INVESTORS, LLC,
as its General Partner
/s/ Xxxxxxx Xxxx
--------------------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer and Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
XXXX CAPITAL FUND VI L.P.
By: XXXX CAPITAL PARTNERS VI, L.P.,
as its General Partner
By: XXXX CAPITAL INVESTORS, LLC,
as its General Partner
/s/ Xxxxxxx Xxxx
--------------------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer and Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
BCIP ASSOCIATES II
By: XXXX CAPITAL INVESTORS, LLC,
as its Managing General Partner
/s/ Xxxxxxx Xxxx
--------------------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer and Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
BCIP ASSOCIATES II-C
By: XXXX CAPITAL INVESTORS, LLC,
as its Managing General Partner
/s/ Xxxxxxx Xxxx
--------------------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer and Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
PEP INVESTMENTS PTY, LTD.
/s/ Xxxxxxx Xxxx
--------------------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Financial Officer and Managing Director
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
XXXXXX X. XxXXXXX
/s/ Xxxxxx X. XxXxxxx
--------------------------------------------
Address: ChipPAC, Inc.
00000 Xxxx Xxxx
Xxxxxxx, XX 00000
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
--------------------------------------------
Address: Xxxx Capital, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
XXXXXX X. XXXX
/s/ Xxxxxx X. Xxxx
--------------------------------------------
Address: Enterprise Partners Venture Capital
0000 Xxxxxxx xx xx Xxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Address: Citicorp Venture Capital Ltd.
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
XXXXXXX XXXXX
/s/ R. Xxxxxxx Xxxxx
--------------------------------------------
Address: Tessera Technologies, Inc.
0000 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
CHONG SUP PARK
/s/ Chong Sup Park
--------------------------------------------
Address: H&Q Asia Pacific
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
XXXX X. XXXXXX XX
/s/ Xxxx X. Xxxxxx XX
--------------------------------------------
Address: Citicorp Venture Capital Ltd.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
CCT VI PARTNERS, L.P.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
Address: 000 Xxxx Xxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000
EXHIBIT A
LIST OF STOCKHOLDERS
Number of Shares of Principal Amount Owned of
Company Class A Common 2.50% Convertible 8% Convertible
Name of Stockholder Stock Owned Notes Notes
------------------- ----------- ----- -----
Citicorp Venture Capital Ltd. 9,153,995 None None
Citicorp Mezzanine III, L.P. None None $50 million
Xxxx Capital L.L.C. 183,334 None None
BCIP Associates II-B 114,271 None None
BCIP Trust Associates II, L.P. 217,144 None None
BCIP Trust Associates II-B 56,156 None None
Sankaty High Yield Asset Partners, L.P. 133,461 None None
Xxxx Capital Fund VI L.P. 4,674,173 None None
BCIP Associates II 625,444 None None
BCIP Associates II-C 242,832 None None
PEP Investments Pty, Ltd. 15,582 None None
Xxxxxx X. XxXxxxx 865,504 None None
Xxxxxx Xxxxxx None None None
Xxxxxx X. Xxxx 10,000 None None
Xxxxxxx X. Xxxxxxx 234,315 None None
Xxxxxxx Xxxxx 10,000 None None
Chong Sup Park 16,215 None None
Xxxx X. Xxxxxx XX None None None
CCT VI Partners, L.P. 1,615,411 None None
EXHIBIT B
IRREVOCABLE PROXY
The undersigned stockholder of ChipPAC, Inc., a
Delaware corporation
(the "COMPANY"), hereby irrevocably (to the fullest extent permitted by Law)
appoints the directors on the Board of Directors of ST Assembly Test Services
Ltd, a Singapore public company limited by shares ("PARENT"), and each of them,
as the sole and exclusive attorneys and proxies of the undersigned, with full
power of substitution and resubstitution, to vote and exercise all voting and
related rights (to the full extent that the undersigned is entitled to do so)
with respect to all of the Shares that now are or hereafter may be beneficially
owned by the undersigned, in accordance with the terms of this Proxy. The Shares
beneficially owned by the undersigned stockholder of the Company as of the date
of this Proxy are listed on the final page of this Proxy. Upon the undersigned's
execution of this Proxy, any and all prior proxies given by the undersigned with
respect to any Shares and the matters in clauses (y) and (z) below are hereby
revoked and the undersigned agrees not to grant any subsequent proxies with
respect to the Shares until after the Expiration Date (as defined below).
Capitalized terms used and not defined herein have the respective meanings
ascribed to them in the
Voting Agreement (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by Law), is
coupled with an interest and is granted pursuant to that certain
Voting
Agreement of even date herewith by and among Parent and the Stockholders,
including the undersigned (the "
VOTING AGREEMENT"), and is granted in
consideration of Parent entering into the Merger Agreement. As used herein, the
term "EXPIRATION DATE" shall mean the earliest to occur of (a) the Effective
Time, (b) termination of the Merger Agreement in accordance with its terms and
(c) as between Parent and the undersigned, the termination of the
Voting
Agreement in accordance with its terms.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every meeting of the stockholders of the Company, however
called, and in every action by written consent by the stockholders of the
Company: (y) in favor of the approval and adoption of the Merger Agreement, the
Merger and the other Transactions and otherwise in such manner as may be
necessary to consummate the Merger; and (z) except as otherwise agreed to in
writing in advance by Parent, against any action, proposal, agreement or
transaction, including, but not limited to, any Competing Transaction (other
than the Merger Agreement and the Merger), the purpose or effect of which would
be to prevent, delay, postpone or materially adversely affect the Merger.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned Stockholder may vote
the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy shall terminate, and be of no further force and effect,
automatically upon the Expiration Date.
Dated: February _____, 2004
Signature of Stockholder:
-----------------------
Print Name of Stockholder:
----------------------
Shares of Company Class A Common Stock owned
beneficially and of record:
________ shares of Company Class A Common Stock
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
EXHIBIT C
Xxxx Capital L.L.C.
BCIP Associates II-B
BCIP Trust Associates II, L.P.
BCIP Trust Associates II-B
Sankaty High Yield Asset Partners, X.X.
Xxxx Capital Fund VI L.P.
BCIP Associates II
BCIP Associates II-C
PEP Investments Pty, Ltd.
CCT VI Partners, L.P.
