Exhibit 10.5.3
FORM OF
-------
AMENDMENT NO. 3 TO AMENDED AND
------------------------------
RESTATED REGISTRATION AGREEMENT
-------------------------------
THIS AMENDMENT NO. 3 TO AMENDED AND RESTATED REGISTRATION
AGREEMENT (this "Amendment") is dated as of August 2, 2000, by and among
---------
ChipPAC, Inc., a Delaware corporation and successor by merger to ChipPAC, Inc.,
a California corporation (the "Company"), Xxxx Capital, Inc., a Delaware
-------
corporation, SXI Group LLC and each of the other persons and entities listed on
the signature pages hereto, which persons and entities are, effective as of the
date hereof, holders of not less than a majority of the Company's Registrable
Securities (as defined in the Original Agreement described in this Amendment).
This Amendment amends that certain Amended and Restated Registration Agreement
dated as of August 5, 1999, as amended by Amendment No. 1 thereto dated June 30,
2000, by and among the Company and each of the other shareholders of the Company
listed therein and as amended by Amendment No. 2 thereto, entered into July 13,
2000, by and among the Company and each of the other shareholders of the Company
listed therein (collectively, the "Original Agreement"). Unless otherwise
------------------
provided in this Agreement, capitalized terms used herein shall have the
meanings set forth in the Original Agreement.
WHEREAS, the Company and Xxxx Capital, Inc. are parties to that certain
Amended and Restated Supplemental Agreement No. 1 to the Advisory Agreement,
dated as of August 2, 2000; and
WHEREAS, the Company and SXI Group LLC are parties to that certain Amended
and Restated Supplemental Agreement No. 1 to the Advisory Agreement, dated as of
August 2, 2000.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties, and intending to be
legally bound hereby, the parties hereby agree as follows:
1. Schedule II attached to the Original Agreement is hereby amended to
include Xxxx Capital, Inc. as a Bain Shareholder.
2. Section 9 of the Original Agreement is hereby amended by amending and
restating the following definitions:
"Bain Registrable Securities" means (i) any shares of Common Stock issued
---------------------------
to the Bain Shareholders pursuant to the Recapitalization Agreement (whether
directly or indirectly through Merger Corp. or otherwise), (ii) any equity
securities issued or issuable directly or indirectly with respect to the
securities referred to in clause (i) by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or
-1-
other reorganization, including a recapitalization or exchange, (iii) any shares
of Common Stock issued to Xxxx Capital, Inc. pursuant the Amended and Restated
Supplemental Agreement No. 1 to the Advisory Agreement, dated as of August 2,
2000, between the Company and Xxxx Capital, Inc. and (iv) any other shares of
Common Stock held by Persons holding securities described in clause (i) or (ii)
above; provided that in the event that pursuant to such recapitalization or
exchange, Non-Participating Securities are issued, such Non-Participating
Securities will not be Registrable Securities. Notwithstanding anything in this
Agreement to the contrary, shares of Common Stock or other equity securities of
the Company that would otherwise constitute Sapphire Registrable Securities
shall not be considered Sapphire Registrable Securities (and thus, not
Registrable Securities) if the holder thereof can sell, in any three (3) month
period, all of such holder's shares or securities, as applicable, without
registration pursuant to Rule 144 under the Securities Act. As to any particular
shares constituting Sapphire Registrable Securities, such shares will cease to
be Sapphire Registrable Securities when they have been (x) effectively
registered under the Securities Act and disposed of in accordance with the
registration statement covering them or (y) sold to the public through a broker,
dealer or market maker pursuant to Rule 144 (or by similar provision then in
force) under the Securities Act.
"SXI Registrable Securities" means (i) any shares of Common Stock issued
--------------------------
to the SXI Shareholders pursuant to the Recapitalization Agreement (whether
directly or indirectly through Merger Corp. or otherwise), (ii) any equity
securities issued or issuable directly or indirectly with respect to the
securities referred to in clause (i) by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization, including a recapitalization or exchange,
(iii) any shares of Common Stock issued to the SXI Shareholders pursuant the
Amended and Restated Supplemental Agreement No. 1 to the Advisory Agreement,
dated as of August 2, 2000, between the Company and SXI Group LLC and (iv) any
other shares of Common Stock held by Persons holding securities described in
clause (i) or (ii) above; provided that in the event that pursuant to such
recapitalization or exchange, Non-Participating Securities are issued, such Non-
Participating Securities will not be Registrable Securities. Notwithstanding
anything in this Agreement to the contrary, shares of Common Stock or other
equity securities of the Company that would otherwise constitute Sapphire
Registrable Securities shall not be considered Sapphire Registrable Securities
(and thus, not Registrable Securities) if the holder thereof can sell, in any
three (3) month period, all of such holder's shares or securities, as
applicable, without registration pursuant to Rule 144 under the Securities Act.
As to any particular shares constituting Sapphire Registrable Securities, such
shares will cease to be Sapphire Registrable Securities when they have been (x)
effectively registered under the Securities Act and disposed of in accordance
with the registration statement covering them or (y) sold to the public through
a broker, dealer or market maker pursuant to Rule 144 (or by similar provision
then in force) under the Securities Act.
3. Effectiveness. From and after the date of this Amendment, the holders of
Sapphire Registrable Securities shall be a party to the Original Agreement, as
amended hereby, and shall have all of the rights and be subject to all of the
duties as a holder of Sapphire Registrable Securities. Except as otherwise set
forth in this Amendment, the terms of the Original Agreement shall remain in
full force and effect and shall remain unchanged.
-2-
4. Integration. Any reference in the Original Agreement to the term
"Agreement" is deemed to refer to both the Original Agreement as well as the
Original Agreement, as amended by this Amendment.
5. Miscellaneous.
a. Amendments and Waivers. Except as otherwise provided herein, the
----------------------
provisions of this Amendment may be amended or waived only upon the prior
written consent of the Company and holders of a majority of the Registrable
Securities; but if such amendment or waiver would treat a holder or group of
holders of Registrable Securities in a manner different from any other holders
of Registrable Securities, then such amendment or waiver will require the
consent of such holder or the holders of a majority of the Registrable
Securities of such group adversely treated.
b. Successors and Assigns. This Amendment will be binding upon and inure
----------------------
to the benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not any express assignment
has been made, the provisions of this Amendment that are for the benefit of the
holders of Registrable Securities (or any portion thereof) as such will be for
the benefit of and enforceable by any subsequent holder of any Registrable
Securities (or of such portion thereof), subject to the provisions respecting
the minimum numbers or percentages of shares of Registrable Securities (or of
such portion thereof) required in order to be entitled to certain rights, or
take certain actions, contained herein.
c. Severability. Whenever possible, each provision of this Amendment
------------
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Amendment is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Amendment will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
d. Counterparts. This Amendment may be executed simultaneously in two or
------------
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together will constitute one and the
same agreement.
e. Descriptive Headings. The descriptive headings of this Amendment are
--------------------
inserted for convenience only and do not constitute a part of this Amendment.
f. Governing Law. All issues concerning the enforceability, validity and
-------------
binding effect of this Amendment will be governed by and construed in accordance
with the laws of the State of California, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of California or
any other jurisdiction) that would cause the application of the law of any
jurisdiction other than the State of California.
-3-
g. Notices. All notices, demands or other communications to be given or
-------
delivered under or by reason of the provisions of this Amendment will be in
writing and will be deemed to have been given when personally delivered or
received by certified mail, return receipt requested, or sent by guaranteed
overnight courier service. Such notices, demands and other communications shall
be sent to the addresses listed in the Original Agreement or to such other
address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party.
* * * * *
-4-
IN WITNESS WHEREOF, the parties have executed this Amendment
No. 3 to Amended and Restated Registration Agreement on the day and year first
above written.
CHIPPAC, INC.
By:
------------------------------
Its:
-----------------------------
XXXX CAPITAL, INC.
By:
------------------------------
Its:
-----------------------------
THE BAIN SHAREHOLDERS:
XXXX CAPITAL FUND VI, L.P.
By: Xxxx Capital Partners VI, L.P.
Its: General Partner
By: Xxxx Capital Investors, Inc.
Its: General Partner
By:
------------------------------
A Managing Director
BCIP ASSOCIATES II
By:
------------------------------
A General Partner
BCIP ASSOCIATES II-B
By:
------------------------------
A General Partner
-5-
BCIP ASSOCIATES II-B
By:
------------------------------
A General Partner
BCIP ASSOCIATES II-C
By:
------------------------------
A General Partner
BCIP TRUST ASSOCIATES II
By: Xxxx Capital, Inc.
Its: General Partner
By:
------------------------------
A Managing Director
BCIP TRUST ASSOCIATES II-B
By: Xxxx Capital, Inc.
Its: General Partner
By:
------------------------------
A Managing Director
PEP INVESTMENTS PTY., LTD.
By:
------------------------------
Its:
-----------------------------
XXXXXXXX STREET PARTNERS II
By:
------------------------------
A General Partner
-6-
SXI GROUP LLC
By:
------------------------------
Its:
-----------------------------
-7-
