Exhibit 10.34
SHAREHOLDERS AGREEMENT
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THIS SHAREHOLDERS AGREEMENT (this "Agreement") is made as of June 30,
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2000, by and among ChipPAC, Inc., a California corporation (the "Company"),
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the Persons listed on Schedule I attached hereto (the "Xxxx Group"), the SXI
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Group (as defined in Section 5 hereof) and Sapphire Worldwide Investments, Inc.,
a British Virgin Islands corporation ("Sapphire"). The Xxxx Group, the SXI Group
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and Sapphire are collectively referred to herein as the "Shareholders"; each of
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the Xxxx Group and the SXI Group is sometimes referred to as a "Group"; and each
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member of each such Group and Sapphire as a "Shareholder." Except as otherwise
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indicated herein, capitalized terms used herein are defined in Section 5 hereof.
WHEREAS, the parties hereto desire to restrict the sale, assignment,
transfer, encumbrance or other disposition of the Capital Stock and to provide
for certain rights and obligations in respect thereto as hereinafter provided.
NOW, THEREFORE, the parties to this Agreement hereby agree as follows:
1. Restrictions on Transfer of Sapphire Shares.
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(a) Transfer of Sapphire Shares. No holder of Sapphire Shares shall
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sell, transfer, assign, pledge or otherwise dispose of (whether directly or
indirectly, whether with or without consideration and whether voluntarily or
involuntarily or by operation of law) any interest in any Sapphire Shares (a
"Transfer"), except Transfers pursuant to and in accordance with the provisions
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of Section 1(b), 1(c), 1(d) or 2 of this Agreement.
(b) Participation Rights.
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(i) Except as otherwise specifically set forth in this Agreement, at
least thirty (30) days prior to any Transfer of shares of any class of Capital
Stock by any member of the Xxxx Group or the SXI Group (the "Transferring
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Shareholder") (other than a Transfer among the members of the Xxxx Group or
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their Affiliates, among the members of the SXI Group or their Affiliates or to
an employee or director of the Company or its Subsidiaries), the Transferring
Shareholder will deliver a written notice (the "Sale Notice") to the Company and
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the other Shareholders (the "Other Shareholders"), specifying in reasonable
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detail the identity of the prospective transferee(s) and the terms and
conditions of the Transfer. Notwithstanding the restrictions contained in this
Section 1, any or all of the Other Shareholders may elect to participate in the
contemplated Transfer by delivering written notice to the Transferring
Shareholder within ten (10) days after delivery of the Sale Notice. If any
Other Shareholder has elected to participate in such Transfer (each such Other
Shareholder, a "Participating Shareholder"), each of the Transferring
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Shareholder and the Participating Shareholders will be entitled to sell in the
contemplated Transfer, at the same price and on the same terms, a number of
shares of such class of Capital Stock equal to the product of (A) the quotient
determined by dividing the number of shares of such class of Capital Stock owned
by such Participating Shareholder by the aggregate number of shares of such
class of Capital Stock owned by the Transferring Shareholder and all
Participating Shareholders and (B) the number of shares of such class of Capital
Stock to be sold in the contemplated Transfer. Notwithstanding the foregoing,
in the event that the Transferring Shareholder intends to Transfer shares of
more than one class of Capital Stock, the Participating Shareholders shall be
required to sell in the contemplated Transfer a pro rata portion of shares of
all such classes of Capital Stock (to the extent the Participating Shareholders
own any shares of such other classes of Capital Stock), which portion shall be
determined in the manner set forth in the immediately preceding sentence.
For example (by way of illustration only), if the Sale
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Notice contemplated a sale of 100 shares of Class A Common
by the Transferring Shareholder, and if the Transferring
Shareholder at such time owns 30% of the Class A Common and
if one Participating Shareholder elects to participate and
owns 20% of the Class A Common (and all other Shareholders
choose not to participate), then the Transferring
Shareholder would be entitled to sell 60 shares (30% / 50% x
100 shares) and the Participating Shareholder would be
entitled to sell 40 shares (20% / 50% x 100 shares).
(ii) The Transferring Shareholder will use reasonable best efforts to
obtain the agreement of the prospective transferee(s) to the participation of
the Participating Shareholders in any contemplated Transfer, and the
Transferring Shareholder will not effect any Transfer of any of its shares of
Capital Stock to the prospective transferee(s) unless (A) simultaneously with
such Transfer, the prospective transferee or transferees purchase from each
Participating Shareholder the shares of Capital Stock which such Participating
Shareholder is entitled to sell to such prospective transferee(s) pursuant to
Section 1(b)(i) above or (B) simultaneously with such Transfer, the Transferring
Shareholder purchases (on the same terms and conditions on which such shares
were sold to the transferee(s)) the number of shares of such class of Capital
Stock from each Participating Shareholder which such Participating Shareholder
would have been entitled to sell pursuant to Section 1(b)(i) above.
(c) Regulatory First Offer Right.
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(i) In the event that it becomes necessary or desirable for Sapphire
to make a Transfer of Sapphire Shares in order to comply with any applicable law
or any rule or regulation of any governmental or regulatory authority or in the
event the Company fails to make any redemption of any Class C Preferred Stock,
par value $.01 per share, held by Sapphire required pursuant to Section 4 of
Part E to Article III of the Company's Articles of Incorporation (irrespective
of any legal or contractual restrictions prohibiting any such redemption),
Sapphire shall have the right to Transfer all or any portion of the Sapphire
Shares to any third Person other than a Packaging Competitor (as defined below)
in accordance with this Section 1(c). For purposes of this Section 1(c), the
term "Packaging Competitor" means any Person that, directly or indirectly,
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either for itself or for any other Person, participates to a significant extent
in the semiconductor merchant assembly or test business anywhere in the world
(i.e., 40% or more of its annual revenues are derived from such business). For
purposes of this Section 1(c), the term "participates" includes any direct or
indirect interest in any enterprise, whether as an officer, director, employee,
partner, sole proprietor, agent, representative, independent contractor,
consultant, owner or otherwise; provided that neither (i) the passive ownership
of 10% or less of the outstanding stock of any publicly traded corporation nor
(ii) being a customer or supplier of any person or entity shall constitute
"participation" in any such business.
(ii) At least 20 business days prior to making any such Transfer of
Sapphire Shares pursuant to this Section 1(c), Sapphire shall deliver a written
notice (the "Sapphire Offer Notice") to the Xxxx Group and the SXI Group (the
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"Recipient Shareholders") and the Company. The Sapphire Offer Notice shall
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disclose in reasonable detail the proposed number of Sapphire Shares to be
transferred and the proposed sale price, terms and conditions of the Transfer.
First, each Recipient Shareholder may elect to purchase all or any portion of
such holder's Pro Rata Share of the Sapphire Shares specified in the Sapphire
Offer Notice at the price and on the other terms specified therein by delivering
written notice of such election to Sapphire and the Company within ten (10)
business days after receipt of the Sapphire Offer Notice by the Company. For
purposes of Section 1(c), each Recipient Shareholder's "Pro Rata Share" shall be
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based upon such Shareholder's proportionate ownership of all Shareholder Shares
owned by all Recipient Shareholders. Any Sapphire Shares not elected to be
purchased by the end of such ten (10) business day period shall be reoffered
during the five business day period immediately following the expiration of the
aforementioned ten (10) business day period by Sapphire on a pro rata basis to
the Recipient Shareholders who have elected to purchase their Pro Rata Share.
If the Recipient Shareholders have not elected to purchase all of the Sapphire
Shares specified in the Sapphire Offer Notice within such fifteen (15) business
day period (i.e., the sum of the previously aforementioned ten (10) and five (5)
business day periods), the Company may elect to purchase all or any portion of
the remaining Sapphire Shares specified in the Sapphire Offer Notice at the
price and on the other terms specified therein by delivering written notice of
such election to Sapphire within 20 business days after receipt of the Sapphire
Offer Notice by the Company, it being understood that Sapphire shall not be
obligated to sell such Sapphire Shares to the Company and the Recipient
Shareholders unless the Company and the Recipient Shareholders, in the
aggregate, have elected to purchase all of the Sapphire Shares specified in such
Sapphire Offer Notice. If the Company or any Recipient Shareholders have
elected to purchase Sapphire Shares from Sapphire, the transfer of such shares
shall be consummated as soon as practical after the delivery of the election
notice(s) to Sapphire, but
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in any event within 30 business days after receipt of the Sapphire Offer Notice
by the Company (or such longer period of time as may be required pursuant to
applicable law). If the Company and the Recipient Shareholders do not elect
within the aforementioned 20 business day period to purchase all of the Sapphire
Shares being offered, Sapphire may, within 60 days after the Company's receipt
of the Sapphire Offer Notice, transfer such Sapphire Shares to one or more third
Persons (other than a Packaging Competitor) at a price no less than 95% of the
price per share specified in the Sapphire Offer Notice and on other terms no
more favorable to the transferees thereof than offered to the Company and the
Recipient Shareholders in the Sapphire Offer Notice. Any Sapphire Shares not
transferred within such 60-day period shall be reoffered to the Recipient
Shareholders and the Company in accordance with this Section 1(c) prior to any
subsequent Transfer.
(d) Certain Permitted Sapphire Transfers. The restrictions contained
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in Section 1(a) will not apply to any Transfer of Sapphire Shares by any
Shareholder (i) among its Affiliates, (ii) pursuant to an Approved Sale or (iii)
pursuant to Section 1(b) or 1(c) hereof; provided that the restrictions
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contained in this Agreement will continue to apply to the Shareholder Shares
after any Transfer pursuant to clause (i) or (iii) above and each transferee of
such Shareholder Shares shall agree in writing, prior to and as a condition to
the effectiveness of such Transfer, to be bound by the provisions of this
Agreement, without modification or condition, subject only to the consummation
of the Transfer. Upon the Transfer of Shareholder Shares pursuant to this
Section 1(d), the transferor will deliver a written notice to the Company and
the other parties to this Agreement, which notice will disclose in reasonable
detail the identity of such transferee(s) and shall include an original
counterpart of the agreement of such transferee(s) to be bound by this
Agreement.
(e) Termination of Restrictions. The restrictions set forth in this
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Section 1 shall continue with respect to each Shareholder Share until the
earlier of (i) the consummation of an Approved Sale (as defined in Section 2) or
(ii) the consummation of an Initial Public Offering in which net proceeds to the
Company exceed $25 million (a "Qualifying IPO").
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2. Sale of the Company.
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(a) If the holders of at least a majority of the Xxxx Shares and the
holders of at least a majority of the SXI Shares (the "Requisite Holders")
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approve (and, in the case of any sale or other fundamental change or
extraordinary transaction which requires the approval of the board of directors
of a California corporation pursuant to the California Corporations Code, the
Board shall have approved such sale) a sale of all or substantially all (as
defined in the Revised Model Business Corporation Act) of the Company's assets
determined on a consolidated basis or a sale of all or substantially all of the
Company's outstanding capital stock (whether by merger, recapitalization,
consolidation, reorganization, combination or otherwise) to any Independent
Third Party or group of Independent Third Parties, and the Board shall have
received a written opinion of an internationally recognized investment banking
firm (which firm shall have been selected by the Board), acting as an
independent financial advisor to the Board, to the effect that the consideration
to be received by the Company or its shareholders (as the case may be) in such
transaction is fair to the Company or its shareholders (as the case may be),
from a financial point of view (collectively an "Approved Sale"), each holder of
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Shareholder Shares will consent to and raise no objections against such Approved
Sale. If the Approved Sale is structured as (i) a merger or consolidation, each
holder of Shareholder Shares will waive any dissenter's rights, appraisal rights
or similar rights in connection with such merger or consolidation or (ii) a sale
of stock, each holder of Shareholder Shares will agree to sell all of its
Shareholder Shares and rights to acquire Shareholder Shares on the terms and
conditions approved by the Board and the Requisite Holders; it being understood
and agreed that in the event one of the terms of such sale provides for joint
and several liability for post-closing indemnification obligations, the Xxxx
Group and the SXI Group shall enter into a contribution agreement with Sapphire,
the Hyundai Group and Intel (as each such term is defined in that certain
Amended and Restated Shareholders Agreement, dated as of August 5, 1999, by and
among the Company and certain of its shareholders) which provides that each
party to such contribution agreement shall bear any such indemnification
obligations pro rata according to each such party's percentage interest in the
proceeds of such Approved Sale. Each holder of Shareholder Shares will take all
necessary or desirable actions in connection with the consummation of the
Approved Sale as requested by the Requisite Holders and the Company.
(b) The obligations of the holders of Capital Stock with respect to
an Approved Sale are subject to the satisfaction of the following conditions:
(i) upon the consummation of the Approved Sale, each holder of Capital Stock
will receive the same form of consideration and the same portion of the
aggregate consideration that such holders of Capital Stock would have received
if such aggregate consideration had been distributed by the Company in complete
liquidation pursuant to the rights and preferences set forth in the Company's
Articles of Incorporation as in effect immediately prior to such Approved Sale,
(ii) if any holder of a class of Capital Stock is given an option as to the form
and amount of consideration to be received, each holder of such class of Capital
Stock will be given the same option; (iii) each holder of then currently
exercisable rights to acquire shares of a class of Capital Stock will be given
an opportunity to exercise such rights prior to the consummation of the Approved
Sale and participate in such sale as holders of such class of Capital Stock;
(iv) Sapphire shall not be obligated to make any general representations and
warranties concerning the business and affairs of the Company (but each shall
bear a portion of the indemnification obligations with respect thereto, subject
to the other terms and conditions of this Section 2), it being understood that
Sapphire would be expected to make customary representations
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and warranties with respect to its ownership of its Shareholder Shares (e.g.,
title to stock, authorization, etc.); (v) Sapphire's indemnification obligations
in connection with an Approved Sale shall not exceed its distributable proceeds
in connection with such transaction; and (vi) Sapphire shall not be obligated to
amend or take any other actions with respect to its then existing contractual
relationships with the Company or the purchaser of the Company.
(c) If the Company or the holders of the Company's securities enter
into any negotiation or transaction for which Rule 506 (or any similar rule then
in effect) promulgated by the Securities and Exchange Commission may be
available with respect to such negotiation or transaction (including a merger,
consolidation or other reorganization), the holders of Shareholder Shares will,
at the request of the Company, appoint a purchaser representative (as such term
is defined in Rule 501 promulgated by the Securities and Exchange Commission)
reasonably acceptable to the Company. If any holder of Shareholder Shares
appoints a purchaser representative designated by the Company, the Company will
pay the fees of such purchaser representative, but if any holder of Shareholder
Shares declines to appoint the purchaser representative designated by the
Company, such holder will appoint another purchaser representative, and such
holder will be responsible for the fees of the purchaser representative so
appointed.
(d) Each holder of Shareholder Shares will bear a pro-rata share of
the costs paid to any third party in connection with any sale of Shareholder
Shares pursuant to an Approved Sale to the extent such costs are incurred for
the benefit of all holders of Capital Stock and are not otherwise paid by the
Company or the acquiring party. Costs incurred by holders of Shareholder Shares
on their own behalf will not be considered costs of the transaction hereunder.
(e) The provisions of this Section 2 shall terminate upon the
consummation of a Qualifying IPO.
3. Legend; Securities Law Matters.
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(a) Each certificate evidencing Shareholder Shares and each
certificate issued in exchange for or upon the Transfer of any Shareholder
Shares (if such shares remain Shareholder Shares as defined herein after such
Transfer) shall be stamped or otherwise imprinted with a legend in substantially
the following form (which legend shall be removed and new unlegended
certificates issued in the event that the shares represented thereby have been
registered pursuant to an effective registration statement filed under the
Securities Act):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ORIGINALLY ISSUED ON ______ __, ____ AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN TRANSFER AND VOTING RESTRICTIONS PURSUANT TO A
SHAREHOLDERS AGREEMENT, DATED AS OF _______ __, 2000, AMONG
THE ISSUER OF SUCH SECURITIES (THE
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"COMPANY") AND CERTAIN OF THE COMPANY'S SHAREHOLDERS. A COPY
OF SUCH SHAREHOLDERS AGREEMENT WILL BE FURNISHED WITHOUT
CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN
REQUEST."
The Company shall imprint such legend on certificates evidencing Shareholder
Shares outstanding prior to the date hereof. The legend set forth above shall
be removed from the certificates evidencing any shares which cease to be
Shareholder Shares in accordance with Section 5 hereof.
(b) In connection with the Transfer of any Shareholder Shares, the
holder thereof shall deliver written notice to the Company describing in
reasonable detail the Transfer or proposed Transfer, together with, if so
requested by the Company, an opinion of counsel which (to the Company's
reasonable satisfaction) is knowledgeable in securities law matters to the
effect that such Transfer of Shareholder Shares may be effected without
registration of such Shareholder Shares under the Securities Act. In addition,
if the holder of the Shareholder Shares delivers to the Company an opinion of
such counsel that no subsequent Transfer of such Shareholder Shares shall
require registration under the Securities Act, the Company shall promptly upon
such contemplated Transfer deliver new certificates for such securities which do
not bear the Securities Act legend set forth in subparagraph (a). If the
Company is not required to deliver new certificates for such Shareholder Shares
not bearing such legend, the holder thereof shall not effect any Transfer of the
same until the prospective transferee has confirmed to the Company in writing
its agreement to be bound by the conditions contained in this subparagraph and
subparagraph (a).
(c) Upon the request of any Shareholder, the Company shall promptly
supply to such Shareholder or its prospective transferees all information
regarding the Company required to be delivered in connection with a Transfer
pursuant to Rule 144A of the Securities and Exchange Commission.
(d) If any Shareholder Shares become eligible for sale pursuant to
Rule 144(k) of the Securities and Exchange Commission or no longer constitute
"restricted securities" (as defined under Rule 144(a) of the Securities and
Exchange Commission), the Company shall, upon the request of the holder of such
Shareholder Shares, remove the legend set forth in subparagraph (a) from the
certificates for such securities.
4. Transfer. Prior to Transferring any Shareholder Shares (other
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than in a Public Sale permitted pursuant to the terms and conditions of this
Agreement or in an Approved Sale) to any Person, the transferring Shareholder
shall cause the prospective transferee to execute and deliver to the Company and
the other Shareholders a counterpart of this Agreement and thereafter all
references to the transferring Shareholder shall be deemed to refer to the
transferee and all references to the transferring Shareholder's Group shall be
deemed to include the transferee, except that the rights of Sapphire set forth
in Section 1(c) shall only inure to the benefit of Sapphire and its Affiliates
and shall not be transferable or otherwise assignable.
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5. Definitions.
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"Affiliate" of a Shareholder means any other Person, entity or
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investment fund controlling, controlled by or under common control with the
Shareholder and, in the case of a Shareholder which is a partnership or a
limited liability company, any partner or member, respectively, of the
Shareholder.
"Articles of Incorporation" means the Company's Articles of
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Incorporation in effect at the time as of which any determination is being made.
"Xxxx Shares" means (i) any Capital Stock acquired by to the Xxxx
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Group and (ii) any equity securities issued or issuable directly or indirectly
with respect to the Capital Stock 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, or, in each
case, any comparable transaction.
"Board" means the Company's Board of Directors.
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"Capital Stock" means each class of the Company's capital stock.
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"Common Stock" means the Company's Class L Common Stock, par value
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$.01 per share, Class A Common Stock, par value $.01 per share, Class B Common
Stock, par value $.01 per share and/or any other class or series of common stock
hereafter created by the Company, as the context may require.
"Family Group" means a Shareholder's spouse and descendants (whether
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or not adopted) and any trust solely for the benefit of the Shareholder and/or
the Shareholder's spouse and/or the Shareholder's descendants (by birth or
adoption), parents or dependents, any charitable trust the grantor of which is a
Shareholder and/or member of a Shareholder's Family Group, or any corporation or
partnership in which the direct and beneficial owner of all of the equity
interest is such Shareholder and/or a member of such Shareholder's Family Group.
"GAAP" means U.S. generally accepted accounting principles,
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consistently applied.
"Independent Third Party" means any Person who (together with its
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Affiliates), immediately prior to the contemplated transaction, does not own in
excess of ten percent (10%) of the Common Stock on a fully-diluted basis (a "10%
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Owner"), who is not controlling, controlled by or under common control with any
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such 10% Owner and who is not the spouse, descendant (by birth or adoption),
parent or dependent of any such 10% Owner or a trust for the benefit of such 10%
Owner and/or such other Persons.
"Initial Public Offering" means a public offering and sale of the
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Common Stock pursuant to an effective registration statement under the
Securities Act of 1933, if immediately thereafter the Company has publicly held
Common Stock listed on a national securities exchange or the NASD automated
quotation system.
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"Person" means an individual, a partnership, a corporation, a limited
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liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or other entity, or a government or any
branch, department, agency, political subdivision or official thereof.
"Public Sale" means any sale of Shareholder Shares to the public
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pursuant to an offering registered under the Securities Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
(other than Rule 144(k)), adopted under the Securities Act.
"Qualifying IPO" has the meaning assigned in Section 1(e).
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"Sapphire Shares" means (i) any Capital Stock issued to Sapphire
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pursuant to the Stock Purchase Agreement, (ii) any shares of Capital Stock
otherwise acquired by Sapphire and (iii) any equity securities issued or
issuable directly or indirectly with respect to the Capital Stock referred to in
clauses (i) or (ii) by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization, or, in each case, any comparable transaction.
"Securities Act" means the Securities Act of 1933, as amended from
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time to time.
"Shareholder Shares" means the Xxxx Shares, the SXI Shares and the
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Sapphire Shares. For purposes of this Agreement, each Shareholder who holds
options or warrants to acquire shares of Capital Stock shall be deemed to be the
holder of all Shareholder Shares issuable (at the time of such determination)
upon the exercise of such options or warrants. As to any particular shares
constituting Shareholder Shares, such shares will cease to be Shareholder Shares
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 any similar provision then in force) under the Securities Act, in each
case in conformity with the terms and conditions of this Agreement.
"Stock Purchase Agreement" means that certain Stock Purchase
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Agreement, dated as of June __, 2000, by and among the Company, Sapphire,
Intersil Corporation and ChipPAC Limited, a wholly-owned indirect Subsidiary of
the Company.
"Subsidiary" means with respect to any Person, any corporation,
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partnership, limited liability company, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof or (ii) if a partnership, association, limited
liability company or other business entity, a majority of the partnership,
membership or other similar ownership interests thereof is at the time owned or
controlled, directly or indirectly, by any Person or one or more Subsidiaries of
that Person or a combination thereof. For purposes hereof, a Person or Persons
shall be deemed to have a majority
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ownership interest in a partnership, association or other business entity if
such Person or Persons shall be allocated a majority of partnership, association
or other business entity gains or losses or shall be or control the managing
director or general partner of such partnership, association or business entity.
"SXI" means SXI Group LLC, a Delaware limited liability company.
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"SXI Group" means SXI; Billig Family Limited Partnership; Xxxxxxxxx X.
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Minturn; Citicorp Venture Capital, Ltd.; their respective Affiliates; their co-
investment partnerships; in connection with a co-investment, their respective
employees, directors, and internal, full-time consultants, any member of any of
their respective Family Groups, and any trust or partnership of which their
respective employees, directors, and internal, full-time consultants are the
sole beneficiaries in connection with a co-investment (any such trust or
partnership, a "Co-Investment Vehicle"), and the partners and beneficiaries of
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such Co-Investment Vehicle as a distribution in-kind; any transferee of any of
the foregoing in order to resolve a Regulatory Problem if, (x) after taking
commercially reasonable actions with the cooperation of the Company, such person
is unable to restructure its ownership of Shareholder Shares in a manner that
avoids a Regulatory Problem and in a manner which is not adverse to such person,
and (y) giving notice to the Company, such person has determined that such
Regulatory Problem may not be avoided; and any other transferee of any of the
foregoing so long as the aggregate SXI Shares held by all such transferees
pursuant to this clause do not exceed 10% of the SXI Shares. "Regulatory
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Problem" means, with respect to any person, any set of facts or circumstances
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wherein it has been asserted by any governmental authority (or such person or
any of its Affiliates believes in good faith that there is a substantial risk of
such assertion) that such person is not entitled to hold, or exercise any
significant right, with respect to, the Shareholder Shares held by such person
because of such person's regulatory status.
"SXI Shares" means (i) any Capital Stock acquired by the SXI Group and
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(ii) any equity securities issued or issuable directly or indirectly with
respect to the Capital Stock 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, or, in each case, any comparable
transaction.
6. Financial Statements and Other Information. The Company will
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deliver to Sapphire at any time prior to an Initial Public Offering:
(a) no later than forty-five (45) days after the end of each
quarterly accounting period of the Company in each fiscal year, unaudited
consolidated statements of income and cash flows of the Company and its
Subsidiaries for such quarterly period and for the period from the
beginning of the fiscal year to the end of such quarter, and unaudited
consolidated balance sheets of the Company and its Subsidiaries as of the
end of such quarterly period, setting forth in each case comparisons to the
Company's annual budget, and to the corresponding period in the preceding
fiscal year (all of which statements shall be
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prepared in accordance with GAAP, except for the absence of footnotes and
subject to year end adjustments); and
(b) no later than one hundred twenty (120) days after the end of
each fiscal year of the Company, consolidated statements of income and cash
flows of the Company for such fiscal year, and consolidated balance sheets
of the Company as of the end of such fiscal year, setting forth in each
case comparisons to the Company's annual budget, and to the preceding
fiscal year, all prepared in accordance with GAAP, and accompanied by an
unqualified opinion of PriceWaterhouseCoopers or such other independent
accounting firm of recognized national standing approved by the Board.
7. Inspection Rights. The Company shall permit any representatives
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designated by any holder of Shareholder Shares, upon reasonable notice and
during normal business hours, to examine all Board minutes of the Company and
its Subsidiaries (including all minutes of all Board committees of the Board of
Directors of the Company and its Subsidiaries), shareholder meeting minutes and
stock ledgers of the Company and its Subsidiaries. This right shall terminate
on the consummation of the first to occur of (i) an Approved Sale and (ii) a
Qualifying IPO.
8. Transfers in Violation of Agreement. Any Transfer or attempted
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Transfer of any Shareholder Shares in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on its
books or treat any purported transferee of such Shareholder Shares as the owner
of such shares for any purpose.
9. Funding Obligations. No provision of this Agreement shall require
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any Shareholder or Group or any of their respective Affiliates to provide any
future funding or any other financial support to the Company or any of its
Subsidiaries.
10. Amendment and Waiver. Except as otherwise provided herein, the
--------------------
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and (i) the holders of a majority of the Bain
Shares, (ii) the holders of a majority of the SXI Shares and (iii) the holders
of a majority of Sapphire Shares; provided that in the event that such amendment
or waiver would adversely treat a Shareholder or Group in a manner different
from any other holders of Shareholder Shares, then such amendment or waiver will
require the consent of such adversely treated holder or the holders of a
majority of the Shareholders Shares of such adversely treated Group. The
failure of any party to enforce any of the provisions of this Agreement shall in
no way be construed as a waiver of such provisions and shall not affect the
right of such party thereafter to enforce each and every provision of this
Agreement in accordance with its terms.
11. Severability. Whenever possible, each provision of this Agreement
------------
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement 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 shall not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this
11
Agreement shall be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision had never been contained
herein.
12. Entire Agreement. Except as otherwise expressly set forth herein,
----------------
this Agreement embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
13. Successors and Assigns. Except as otherwise provided herein, this
----------------------
Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Shareholders and any subsequent
holders of Shareholder Shares and the respective successors and assigns of each
of them, so long as they hold Shareholder Shares. If a party hereto ceases to
own any Shareholder Shares, such party will no longer be deemed to be a
Shareholder for purposes of this Agreement.
14. Counterparts. This Agreement may be executed in one or more
------------
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
15. Remedies. The parties hereto agree and acknowledge that money
--------
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that the Company and any Shareholder shall have the right to
injunctive relief, in addition to all of its rights and remedies at law or in
equity, to enforce the provisions of this Agreement. Nothing contained in this
Agreement shall be construed to confer upon any Person who is not a signatory
hereto or any successor or assign of a signatory hereto any rights or benefits,
as a third party beneficiary or otherwise.
16. Notices. All notices, demands and other communications to be
-------
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when personally delivered,
sent by telecopy (with receipt confirmed) on a business day during regular
business hours of the recipient (or, if not, on the next succeeding business
day) or three business days after sent by reputable overnight express courier
(charges prepaid), at the address listed below or at any address listed in the
Company's records in case of any Shareholder not so listed herein.
If to the Company:
ChipPAC, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
X.X.X.
Attention: CEO
Facsimile: (000) 000-0000
12
If to Sapphire:
Sapphire Worldwide Investments, Inc,
c/o Intersil Corporation
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
X.X.X.
Attention: Xxxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Intersil Corporation
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
X.X.X.
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to any member of the Xxxx Group:
c/o Bain Capital, Inc.
Two Xxxxxx Place
Boston, Massachusetts 02116
U.S.A.
Attention: Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
U.S.A.
Attention: Xxxxxxx X. Xxxxxx, P.C.
Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
13
If to any member of the SXI Group:
c/o Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
X.X.X.
Attention: G. Xxxxxx X'Xxxxxxx
Xxxxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
14
17. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE. THE CORPORATE
------------------------------------------------
LAW OF THE STATE OF CALIFORNIA WILL GOVERN ALL ISSUES CONCERNING THE RELATIVE
RIGHTS OF THE COMPANY AND ITS SHAREHOLDERS. ALL OTHER ISSUES CONCERNING THIS
AGREEMENT SHALL 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. EACH PARTY HERETO HEREBY SUBMITS TO THE CO-
EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA, AND OF ANY CALIFORNIA STATE COURT SITTING IN SAN
FRANCISCO, CALIFORNIA OVER ANY LAWSUIT UNDER THIS AGREEMENT AND WAIVES ANY
OBJECTION BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION
INSTITUTED THEREIN. EACH PARTY HERETO HEREBY WAIVES THE NECESSITY FOR PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL (RETURN RECEIPT REQUESTED),
WITH A COPY ALSO BEING SENT BY FACSIMILE (WITH RECEIPT CONFIRMED), IN EACH CASE
DIRECTED TO SUCH PARTY AT ITS ADDRESS SET FORTH IN, AND WITH COPIES SENT AS
REQUIRED BY, SECTION 16 ABOVE, AND SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED ON THE DATE OF ACTUAL RECEIPT. EACH PARTY HERETO HEREBY CONSENTS TO
SERVICE OF PROCESS AS AFORESAID. NOTHING IN THIS SECTION 17 WILL PROHIBIT
PERSONAL SERVICE IN LIEU OF THE SERVICE BY MAIL CONTEMPLATED HEREIN.
18. Delivery by Facsimile. This Agreement and any signed agreement
---------------------
or instrument entered into in connection herewith or contemplated hereby, and
any amendments hereto or thereto, to the extent signed and delivered by means of
a facsimile machine, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in person.
At the request of any party hereto or to any such agreement or instrument, each
other party hereto or thereto shall re-execute original forms thereof and
deliver them to all other parties. No party hereto or to any such agreement or
instrument shall raise the use of a facsimile machine to deliver a signature or
the fact that any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine as a defense to the
formation of a contract and each such party forever waives any such defense.
19. Arbitration Procedure.
---------------------
(a) The parties agree that they will attempt to settle any claim or
controversy arising out of this Agreement through good faith negotiations in the
spirit of mutual cooperation between senior business executives with authority
to resolve the controversy.
15
(b) Any dispute that cannot be resolved by the parties through good
faith negotiations within 30 days of the commencement of the controversy will
then, upon the written request of any party, be resolved by binding arbitration
conducted in accordance with the Commercial Arbitration Rules of the American
Arbitration Association by a sole arbitrator who is a retired federal judge
resident in the State of California. To the extent not governed by such rules,
such arbitrator shall be directed by the parties to set a schedule for
determination of such dispute that is reasonable under the circumstances. Such
arbitrator shall be directed by the parties to determine the dispute in
accordance with this Agreement and the substantive rules of law (but not the
rules of procedure or evidence) that would be applied by a federal court. The
arbitration will be conducted in the English language in San Francisco,
California. Judgment upon the award rendered by the arbitrator may be entered
by any court having jurisdiction.
(c) Nothing contained in this Section 19 shall prevent any party from
resorting to judicial process if injunctive or other equitable relief from a
court is available to prevent irreparable injury to one party or to others or to
the extent no adequate remedy is available at law. The use of arbitration
procedures will not be construed under the doctrine of laches, waiver or
estoppel to affect adversely any party's right to assert any claim or defense.
20. Descriptive Headings. The descriptive headings of this Agreement
--------------------
are inserted for convenience only and do not constitute a part of this
Agreement.
21. No Strict Construction. The parties hereto have participated
----------------------
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
[the rest of this page is intentionally left blank]
16
IN WITNESS WHEREOF, the parties hereto have executed this Shareholders
Agreement on the day and year first above written.
CHIPPAC, INC.
By: /s/ Xxxxxx St. Xxxxxx-Xxxxxxx
------------------------------------
Its: Power of Attorney
-----------------------------------
SAPPHIRE:
SAPPHIRE WORLDWIDE INVESTMENTS, INC.
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Its: Assistant Secretary
-----------------------------------
THE XXXX GROUP:
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: /s/ Xxxxxx Xxxxxx
------------------------------------
A Managing Director
BCIP ASSOCIATES II
By: /s/ Xxxxxx Xxxxxx
------------------------------------
A General Partner
BCIP ASSOCIATES II-B
By: /s/ Xxxxxx Xxxxxx
------------------------------------
A General Partner
BCIP ASSOCIATES II-C
By: /s/ Xxxxxx Xxxxxx
------------------------------------
A General Partner
BCIP TRUST ASSOCIATES II
By: Xxxx Capital, Inc.
Its: General Partner
By: /s/ Xxxxxx Xxxxxx
------------------------------------
A Managing Director
BCIP TRUST ASSOCIATES II-B
By: Xxxx Capital, Inc.
Its: General Partner
By: /s/ Xxxxxx Xxxxxx
------------------------------------
A Managing Director
PEP INVESTMENTS PTY. LTD
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Its: General Partner
XXXXXXXX STREET PARTNERS II
By: /s/ Xxxx Xxxxxxx
-------------------------------------
A General Partner
THE SXI GROUP:
SXI GROUP LLC
By: /s/ Xxxx X. Xxxxxx, XX
--------------------------------------
Its: Member
-------------------------------------
SCHEDULE I
The Xxxx Group
--------------
Xxxx Capital Fund VI, L.P.
BCIP Associates II
BCIP Associates II-B
BCIP Trust Associates II-C
BCIP Trust Associates II
BCIP Trust Associates II-B
PEP Investments Pty., Ltd.
Xxxxxxxx Street Partners II
