EXHIBIT 10.16
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CONFIDENTIAL
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WARRANT TO PURCHASE
CLASS B COMMON STOCK
ChipPAC, Inc.
AUGUST 5, 1999
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EXHIBIT 10.16
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CONFIDENTIAL
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TABLE OF CONTENTS
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1. CERTAIN DEFINITIONS............................................... 1
2. EXERCISE OF WARRANT............................................... 3
3. VALID ISSUANCE; TAXES............................................. 5
4. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES................. 5
5. CERTIFICATE AS TO ADJUSTMENTS..................................... 7
6. LOSS OR MUTILATION................................................ 7
7. RESERVATION OF WARRANT STOCK...................................... 7
8. TRANSFER AND EXCHANGE............................................. 8
9. RESTRICTIONS ON TRANSFER.......................................... 8
10. COMPLIANCE WITH SECURITIES LAWS................................... 8
11. NO RIGHTS OR LIABILITIES AS STOCKHOLDERS.......................... 9
12. REGISTRATION RIGHTS............................................... 10
13. NOTICES........................................................... 10
14. HEADINGS.......................................................... 10
15. LAW GOVERNING..................................................... 10
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16. NO IMPAIRMENT..................................................... 10
17. NOTICES OF RECORD DATE............................................ 10
18. SEVERABILITY...................................................... 11
19. COUNTERPARTS...................................................... 11
20. NO INCONSISTENT AGREEMENTS........................................ 11
21. SATURDAYS, SUNDAYS AND HOLIDAYS................................... 11
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CONFIDENTIAL
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THE WARRANT EVIDENCED OR CONSTITUTED HEREBY, AND ALL SHARES OF CLASS B COMMON
STOCK OR COMMON STOCK ISSUABLE HEREUNDER, HAVE BEEN AND WILL BE ISSUED WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE ACT"). SUCH
SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, PLEDGED OR
HYPOTHECATED WITHOUT REGISTRATION UNDER THE ACT UNLESS EITHER (A) THE COMPANY
HAS RECEIVED AN OPINION OF COUNSEL, IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED IN
CONNECTION WITH SUCH DISPOSITION OR (B) THE SALE OF SUCH SECURITIES IS MADE
PURSUANT TO SECURITIES AND EXCHANGE COMMISSION RULE 144.
WARRANT TO PURCHASE
CLASS B COMMON STOCK OF
ChipPAC, Inc.
(Subject to Adjustment)
NO. W-1
This Certifies That, for value received, Intel Corporation, a Delaware
corporation, or its permitted registered assigns (the "Holder") is entitled,
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subject to the terms and conditions of this Warrant, at any time after the
closing of an IPO (the "Effective Date"), and before the occurrence of an
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Expiration Event, to purchase from ChipPAC, Inc., a California corporation (the
"Company"), a number of shares of Warrant Stock of the Company determined by
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dividing five million dollars ($5,000,000) by 80% of the IPO Price, at a price
per share equal to 80% of the IPO Price ("Purchase Price"). Both the number of
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shares of Warrant Stock purchasable upon exercise of this Warrant and the
Purchase Price are subject to adjustment and change as provided herein. This
Warrant is issued pursuant to that certain Stock Purchase Agreement, dated
August 5, 1999 (the "Purchase Agreement"), between the Company and Holder.
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1. CERTAIN DEFINITIONS. As used in this Warrant, the following terms shall
have the following respective meanings:
"Common Stock" shall mean collectively the Company's Class A Common Stock,
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par value $.01 per share, the Class B Common Stock and any capital stock of any
class of the Company hereafter authorized which is not limited to a fixed sum or
percentage of par or stated value with respect to the rights of the holders
thereof to participate in dividends or in the distribution of assets upon any
liquidation, dissolution or winding up of the Company.
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"Class B Common Stock" shall mean the Company's non-voting Class B Common
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Stock, par value $.01 per share.
"Expiration Date" shall mean the date of an Expiration Event.
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"Expiration Event" shall mean 5:00 p.m. California time on the earlier of
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(a) the 180th day following the closing of an IPO, (b) the acquisition of the
Company in a transaction in which the rights provided under Section 3 of the
Shareholders Agreement are triggered (an "Expiration Acquisition") or (c) August
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5, 2009.
"Fair Market Value" of a share of Warrant Stock as of a particular date
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shall mean:
(a) If traded on a securities exchange or the Nasdaq National Market,
the Fair Market Value shall be deemed to be the average of the closing prices of
the Common Stock of the Company on such exchange or market over the five (5)
business days ending immediately prior to the applicable date of valuation;
(b) If actively traded over-the-counter, the Fair Market Value shall
be deemed to be the average of the closing bid prices over the thirty (30) day
period ending immediately prior to the applicable date of valuation; and
(c) If there is no active public market, the Fair Market Value shall
be the value thereof, as agreed upon by the Company and the Holder; provided,
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however, that if the Company and the Holder cannot agree on such value, such
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value shall be determined by an independent valuation firm experienced in
valuing businesses such as the Company and jointly selected in good faith by the
Company and the Holder. Fees and expenses of the valuation firm shall be borne
equally for by the Company and the Holder.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of
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1976, as amended.
"IPO" shall mean the closing of the Company's first underwritten public
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offering pursuant to an effective registration statement under the Securities
Act, covering the offer and sale of Common Stock.
"IPO Price" shall mean the price to the public, before deducting for
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underwriting commissions, stated on the cover page of the final prospectus
filed with the SEC in connection with an IPO.
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"Registered Holder" shall mean any Holder in whose name this Warrant is
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registered upon the books and records maintained by the Company.
"Securities Act" shall mean the Securities Act of 1933, as amended.
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"SEC" shall mean the United States Securities and Exchange Commission.
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"Shareholders Agreement" shall mean the Shareholders Agreement, dated as of
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August 5, 1999, by and among the Company, Holder and the other holders of the
Company's equity securities, as amended from time to time.
"Subsidiary" shall mean an entity in which a party owns 50% or more of the
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outstanding equity (or profits) interests or voting power or has the power, by
contract or otherwise, to elect a majority of the directors or other similar
managing body.
"Warrant" shall mean this Warrant and any warrant delivered in substitution
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or exchange therefor as provided herein.
"Warrant Stock" shall mean the Class B Common Stock of the Company and any
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other securities at any time receivable or issuable upon exercise of this
Warrant.
2. EXERCISE OF WARRANT.
2.1. Payment. Subject to compliance with the terms and conditions of this
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Warrant and applicable securities laws, this Warrant may be exercised, in whole
or in part at any time or from time to time, on or before the Expiration Date by
the delivery (including, without limitation, delivery by facsimile) of the form
of Notice of Exercise attached hereto as Exhibit 1 (the "Notice of Exercise"),
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duly executed by the Holder, at the principal office of the Company, and as soon
as practicable after such date, surrendering:
(a) this Warrant at the principal office of the Company, and
(b) payment, (i) in cash, by wire transfer of immediately available
funds, (ii) by cancellation by the Holder of indebtedness of the Company to the
Holder or (iii) by a combination of (i) and (ii), of an amount equal to the
product obtained by multiplying the number of shares of Class B Common Stock
being purchased upon such exercise by the then effective Purchase Price (the
"Exercise Amount"), except that if the Holder is subject to HSR Act Restrictions
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(as defined in Section 2.5 below), the Exercise Amount shall be paid to the
Company upon termination of all HSR Act Restrictions.
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2.2. Net Issue Exercise. In lieu of the payment methods set forth in
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Section 2.1(b) above, the Holder may elect to exchange all or some of the
Warrant for shares of Warrant Stock equal to the value of the amount of the
Warrant being exchanged on the date of exchange. If the Holder elects to
exchange this Warrant as provided in this Section 2.2, the Holder shall tender
to the Company the Warrant for the amount being exchanged, along with written
notice of the Holder's election to exchange some or all of the Warrant, and the
Company shall issue to the Holder the number of shares of the Warrant Stock
computed using the following formula:
X = Y (A-B)
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A
Where:
X = the number of shares of Warrant Stock to be issued to the Holder;
Y = the number of shares of Warrant Stock purchasable under the amount
of the Warrant being exchanged (as adjusted to the date of such
calculation);
A = the Fair Market Value of one share of the Company's Common Stock;
and
B = Purchase Price (as adjusted to the date of such calculation).
All references herein to an "exercise" of the Warrant shall include an
exchange pursuant to this Section 2.2.
2.3. "Easy Sale" Exercise. In lieu of the payment methods set forth in
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Section 2.1(b) above, when permitted by law and applicable regulations
(including Nasdaq and NASD rules), the Holder, may pay the Exercise Amount
through a "same day sale" commitment from the Holder (and if applicable a
broker-dealer that is a member of the National Association of Securities Dealers
(a "NASD Dealer")), whereby the Holder irrevocably elects to exercise this
Warrant and to sell a portion of the Warrant Stock so purchased to pay for the
Purchase Price and the Holder (or, if applicable, the NASD Dealer) commits upon
sale (or, in the case of the NASD Dealer, upon receipt) of such Warrant Stock to
forward the Exercise Amount directly to the Company.
2.4. Stock Certificates; Fractional Shares. As soon as practicable on or
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after any date of exercise of this Warrant pursuant to this Section 2, the
Company shall issue and deliver to the person or persons entitled to receive the
same a certificate or certificates for the number of whole shares of Warrant
Stock issuable upon such exercise, together with cash in lieu of any fraction of
a share equal to such fraction of the current Fair Market Value of one whole
share of Warrant
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Stock as of the date of exercise of this Warrant. No fractional shares or scrip
representing fractional shares shall be issued upon an exercise of this Warrant.
2.5. HSR Act. The Company hereby acknowledges that exercise of this
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Warrant by the Holder may subject the Company or the Holder to the filing
requirements of the HSR Act and that the Holder may be prevented from exercising
this Warrant until the expiration or early termination of all waiting periods
imposed by the HSR Act ("HSR Act Restrictions"). If on or before the Expiration
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Date the Holder has sent the Notice of Exercise to Company and the Holder has
not been able to complete the exercise of this Warrant prior to the Expiration
Date because of HSR Act Restrictions, the Holder shall be entitled to complete
the process of exercising this Warrant in accordance with the procedures
contained herein notwithstanding the fact that completion of the exercise of
this Warrant would take place after the Expiration Date.
2.6. Partial Exercise; Effective Date of Exercise. In case of any partial
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exercise of this Warrant, the Company shall cancel this Warrant upon surrender
hereof and shall execute and deliver a new Warrant of like tenor and date for
the balance of the shares of Warrant Stock purchasable hereunder. This Warrant
shall be deemed to have been exercised immediately prior to the close of
business on the date of its surrender for exercise as provided above. However,
if the Holder is subject to HSR Act Restrictions, this Warrant shall be deemed
to have been exercised on the date immediately following the date of the
expiration of all HSR Act Restrictions. The person entitled to receive the
shares of Warrant Stock issuable upon exercise of this Warrant shall be treated
for all purposes as the holder of record of such shares as of the close of
business on the date the Holder is deemed to have exercised this Warrant.
3. VALID ISSUANCE; TAXES. All shares of Warrant Stock issued upon the
exercise of this Warrant shall be validly issued, fully paid and non-assessable,
and the Company shall pay all taxes and other governmental charges that may be
imposed in respect of the issue or delivery thereof. The Company shall not be
required to pay any tax or other charge imposed in connection with any transfer
involved in the issuance of any certificate for shares of Warrant Stock in any
name other than that of the Registered Holder of this Warrant, and in such case
the Company shall not be required to issue or deliver any stock certificate or
security until such tax or other charge has been paid, or it has been
established to the Company's reasonable satisfaction that no tax or other charge
is due.
4. ADJUSTMENT OF PURCHASE PRICE AND NUMBER OF SHARES. The number of shares of
Warrant Stock issuable upon exercise of this Warrant (or any shares of stock or
other securities or property receivable or issuable upon exercise of this
Warrant) and the Purchase Price are subject to adjustment upon occurrence of the
following events:
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4.1. Adjustment for Stock Splits, Stock Subdivisions or Combinations of
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Shares. The Purchase Price of this Warrant shall be proportionally decreased
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and the number of shares of Warrant Stock issuable upon exercise of this Warrant
(or any shares of stock or other securities at the time issuable upon exercise
of this Warrant) shall be proportionally increased to reflect any stock split or
subdivision of the Warrant Stock. The Purchase Price of this Warrant shall be
proportionally increased and the number of shares of Warrant Stock issuable upon
exercise of this Warrant (or any shares of stock or other securities at the time
issuable upon exercise of this Warrant) shall be proportionally decreased to
reflect any combination of the Warrant Stock.
4.2. Adjustment for Dividends or Distributions of Stock or Other Securities
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or Property. In case the Company shall make or issue, or shall fix a record
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date for the determination of eligible holders entitled to receive, a dividend
or other distribution with respect to the Warrant Stock (or any shares of stock
or other securities at the time issuable upon exercise of the Warrant) payable
in (a) securities of the Company or (b) assets (excluding cash dividends), then,
in each such case, the Holder of this Warrant on exercise hereof at any time
after the consummation, effective date or record date of such dividend or other
distribution, shall receive, in addition to the shares of Warrant Stock (or such
other stock or securities) issuable on such exercise prior to such date, and
without the payment of additional consideration therefor, the securities or such
other assets of the Company to which such Holder would have been entitled upon
such date if such Holder had exercised this Warrant on the date hereof and had
thereafter, during the period from the date hereof to and including the date of
such exercise, retained such shares or all other additional stock available by
it as aforesaid during such period giving effect to all adjustments called for
by this Section 4.
4.3. Reclassification. If the Company, by reclassification of securities
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or otherwise, shall change any of the securities as to which purchase rights
under this Warrant exist into the same or a different number of securities of
any other class or classes, this Warrant shall thereafter represent the right to
acquire such number and kind of securities as would have been issuable as the
result of such change with respect to the securities that were subject to the
purchase rights under this Warrant immediately prior to such reclassification or
other change and the Purchase Price therefore shall be appropriately adjusted,
all subject to further adjustment as provided in this Section 4. No adjustment
shall be made pursuant to this Section 4.3 upon any conversion or redemption of
the Warrant Stock which is the subject of Section 4.5.
4.4. Adjustment for Capital Reorganization, Merger or Consolidation. In
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case of any capital reorganization of the capital stock of the Company (other
than an Expiration Acquisition or a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), or any merger or
consolidation of the Company with or into another corporation (other than an
Expiration Acquisition), or the sale of all or substantially all the assets of
the Company (other than an Expiration Acquisition), then, and in each such case,
as a part of such
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reorganization, merger, consolidation, sale or transfer, lawful provision shall
be made so that the Holder of this Warrant shall thereafter be entitled to
receive upon exercise of this Warrant, during the period specified herein and
upon payment of the Purchase Price then in effect, the number of shares of stock
or other securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer that a holder of the
shares deliverable upon exercise of this Warrant would have been entitled to
receive in such reorganization, consolidation, merger, sale or transfer if this
Warrant had been exercised immediately before such reorganization, merger,
consolidation, sale or transfer, all subject to further adjustment as provided
in this Section 4. The foregoing provisions of this Section 4.4 shall similarly
apply to successive reorganizations, consolidations, mergers, sales and
transfers and to the stock or securities of any other corporation that are at
the time receivable upon the exercise of this Warrant. If the per-share
consideration payable to the Holder hereof for shares in connection with any
such transaction is in a form other than cash or marketable securities, then the
value of such consideration shall be determined in good faith by the Board of
Directors. In all events, appropriate adjustment (as determined in good faith by
the Board of Directors) shall be made in the application of the provisions of
this Warrant with respect to the rights and interests of the Holder after the
transaction, to the end that the provisions of this Warrant shall be applicable
after that event, as near as reasonably may be, in relation to any shares or
other property deliverable after that event upon exercise of this Warrant.
4.5. Conversion of Warrant Stock. In case all or any portion of the
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authorized and outstanding shares of Warrant Stock of the Company are redeemed
or converted or reclassified into other securities or property pursuant to the
Company's Articles of Incorporation or otherwise, or the Warrant Stock otherwise
ceases to exist, then, in such case, the Holder of this Warrant, upon exercise
hereof at any time after the date on which the Warrant Stock is so redeemed or
converted, reclassified or ceases to exist (the "Termination Date"), shall
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receive, in lieu of the number of shares of Warrant Stock that would have been
issuable upon such exercise immediately prior to the Termination Date, the
shares of Common Stock that would have been received if this Warrant had been
exercised in full and the Warrant Stock received thereupon had been
simultaneously converted immediately prior to the Termination Date, all subject
to further adjustment as provided in this Warrant. Additionally, the Purchase
Price shall be immediately adjusted to equal the quotient obtained by dividing
(a) the aggregate Purchase Price of the maximum number of shares of Warrant
Stock for which this Warrant was exercisable immediately prior to the
Termination Date by (b) the number of shares of Common Stock for which this
Warrant is exercisable immediately after the Termination Date, all subject to
further adjustment as provided herein.
5. CERTIFICATE AS TO ADJUSTMENTS. In each case of any adjustment in the
Purchase Price, or number or type of shares issuable upon exercise of this
Warrant, the Chief Financial Officer or Controller of the Company shall compute
such adjustment in accordance
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with the terms of this Warrant and prepare a certificate setting forth such
adjustment and showing in detail the facts upon which such adjustment is based,
including a statement of the adjusted Purchase Price. The Company shall promptly
send (by facsimile and by either first class mail, postage prepaid or overnight
delivery) a copy of each such certificate to the Holder.
6. LOSS OR MUTILATION. Upon receipt of evidence reasonably satisfactory to the
Company of the ownership of and the loss, theft, destruction or mutilation of
this Warrant, and of indemnity reasonably satisfactory to it, and (in the case
of mutilation) upon surrender and cancellation of this Warrant, the Company will
execute and deliver in lieu thereof a new Warrant of like tenor as the lost,
stolen, destroyed or mutilated Warrant.
7. RESERVATION OF WARRANT STOCK. The Company hereby covenants that at all
times there shall be reserved for issuance and delivery upon exercise of this
Warrant such number of shares of Warrant Stock or other shares of capital stock
of the Company as are from time to time issuable upon exercise of this Warrant
and, from time to time, will take all steps necessary to amend its Articles of
Incorporation to provide sufficient reserves of shares of Warrant Stock issuable
upon exercise of this Warrant (and shares of its Common Stock for issuance on
conversion of such Warrant Stock). All such shares shall be duly authorized, and
when issued upon such exercise, shall be validly issued, fully paid and non-
assessable, free and clear of all liens, security interests, charges and other
encumbrances or restrictions on sale and free and clear of all preemptive
rights, except encumbrances or restrictions arising under federal or state
securities laws. Issuance of this Warrant shall constitute full authority to the
Company's officers who are charged with the duty of executing stock certificates
to execute and issue the necessary certificates for shares of Warrant Stock and
Common Stock upon the exercise of this Warrant.
8. TRANSFER AND EXCHANGE. This Warrant and all rights hereunder may be
transferred in whole and not in part, subject to the terms and conditions of
this Warrant and compliance with all applicable securities laws, only (a) to a
Subsidiary of Holder; or (b) subject to the terms and conditions contained
therein, in accordance with that certain Shareholders Agreement, dated the date
hereof, among the Company, the Holders and certain other persons. Permitted
transfers shall be made on the books of the Company maintained for such purpose
at the principal office of the Company referred to above, by the Registered
Holder hereof in person, or by duly authorized attorney, upon surrender of this
Warrant properly endorsed and upon payment of any necessary transfer tax or
other governmental charge imposed upon such transfer. Each taker and holder of
this Warrant, by taking or holding the same, consents and agrees that when this
Warrant shall have been so endorsed, the person in possession of this Warrant
may be treated by the Company, and all other persons dealing with this Warrant,
as the absolute owner hereof for any purpose and as the person entitled to
exercise the rights represented hereby, any notice to the contrary
notwithstanding; provided, however, that until a transfer of this Warrant is
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duly registered on the books of the Company, the Company may treat the
Registered Holder hereof as the owner for all purposes.
9. RESTRICTIONS ON TRANSFER. The Holder, by acceptance hereof, agrees that,
absent an effective registration statement filed with the SEC under the
Securities Act, covering the disposition or sale of this Warrant or the Warrant
Stock issued or issuable upon exercise hereof or the Common Stock issuable upon
conversion thereof, as the case may be, and registration or qualification under
applicable state securities laws, such Holder will not sell, transfer, pledge,
or hypothecate any or all such Warrants, Warrant Stock, or Common Stock, as the
case may be, unless either (a) the Company has received an opinion of counsel,
in form and substance reasonably satisfactory to the Company, to the effect that
such registration is not required in connection with such disposition or (b) the
sale of such securities is made pursuant to SEC Rule 144.
10. COMPLIANCE WITH SECURITIES LAWS. By acceptance of this Warrant, the
Holder hereby represents, warrants and covenants: (a) that any shares of
Warrant Stock purchased upon exercise of this Warrant or acquired upon
conversion thereof shall be acquired for investment only and not with a view to,
or for sale in connection with, any distribution thereof; (b) that the Holder
has had such opportunity as such Holder has deemed adequate to obtain from
representatives of the Company such information as is necessary to permit the
Holder to evaluate the merits and risks of its investment in the Company; (c)
that the Holder is able to bear the economic risk of holding such shares as may
be acquired pursuant to the exercise of this Warrant for an indefinite period;
(d) that the Holder understands that the shares of Warrant Stock acquired
pursuant to the exercise of this Warrant or acquired upon conversion thereof
will not be registered under the Securities Act (unless otherwise required
pursuant to exercise by the Holder of the registration rights, if any,
previously granted to the Registered Holder) and will be "restricted securities"
within the meaning of SEC Rule 144 and that the exemption from registration
under Rule 144 will not be available for at least one year from the date of
exercise of this Warrant, subject to any special treatment by the SEC for
exercise of this Warrant pursuant to Section 2.2, and even then will not be
available unless a public market then exists for the stock, adequate information
concerning the Company is then available to the public, and other terms and
conditions of Rule 144 are complied with; and (e) that all stock certificates
representing shares of Warrant Stock issued to the Holder upon exercise of this
Warrant or upon conversion of such shares may have affixed thereto a legend
substantially in the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE
SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO
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RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED
OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY
PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS.
11. NO RIGHTS OR LIABILITIES AS STOCKHOLDERS. This Warrant shall not entitle
the Holder to any voting rights or other rights as a stockholder of the Company.
In the absence of affirmative action by such Holder to purchase Warrant Stock by
exercise of this Warrant or Common Stock upon conversion thereof, no provisions
of this Warrant, and no enumeration herein of the rights or privileges of the
Holder hereof shall cause such Holder hereof to be a stockholder of the Company
for any purpose.
12. REGISTRATION RIGHTS. All shares of Class B Common Stock or Common Stock
issuable upon conversion of the shares of Warrant Stock issuable upon exercise
of this Warrant shall be "Intel Registrable Securities" or such other definition
of securities entitled to registration rights pursuant to the Registration
Agreement, dated as of the date hereof, between the Company, the Holder and
certain other persons, and are entitled, subject to the terms and conditions of
that agreement, to all registration rights granted to holders of Registrable
Securities thereunder.
13. NOTICES. All notices and other communications from the Company to the
Holder shall be given in accordance with the Purchase Agreement.
14. HEADINGS. The headings in this Warrant are for purposes of convenience
in reference only, and shall not be deemed to constitute a part hereof.
15. LAW GOVERNING. This Warrant shall be construed and enforced in
accordance with the governing law of the Purchase Agreement.
16. NO IMPAIRMENT. The Company will not, by amendment of its Articles of
Incorporation or bylaws, or through reorganization, consolidation, merger,
dissolution, issue or sale of securities, sale of assets or any other voluntary
action, avoid or seek to avoid the
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observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the Registered Holder of this Warrant against impairment. Without
limiting the generality of the foregoing, the Company: (a) will not increase the
par value of any shares of stock issuable upon the exercise of this Warrant
above the amount payable therefor upon such exercise and (b) will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and non-assessable shares of Warrant Stock upon
exercise of this Warrant.
17. NOTICES OF RECORD DATE. In case:
17.1. the Company shall take a record of the holders of its Warrant
Stock, Common Stock (or other stock or securities at the time receivable upon
the exercise of this Warrant), for the purpose of entitling them to receive any
dividend or other distribution, or any right to subscribe for or purchase any
shares of stock of any class or any other securities or to receive any other
right; or
17.2. of any consolidation or merger of the Company with or into
another corporation, any capital reorganization of the Company, any
reclassification of the capital stock of the Company, or any conveyance of all
or substantially all of the assets of the Company to another corporation in
which holders of the Company's stock are to receive stock, securities or
property of another corporation; or
17.3. of any voluntary dissolution, liquidation or winding-up of the
Company; or
17.4. of any redemption or conversion of all outstanding Common Stock
or Warrant Stock; then, and in each such case, the Company will mail or cause to
be mailed to the Registered Holder of this Warrant a notice specifying, as the
case may be, (a) the date on which a record is to be taken for the purpose of
such dividend, distribution or right or (b) the date on which such
reorganization, reclassification, consolidation, merger, conveyance,
dissolution, liquidation, winding-up, redemption or conversion is to take place,
and the time, if any is to be fixed, as of which the holders of record of
Warrant Stock, Common Stock or (such stock or securities as at the time are
receivable upon the exercise of this Warrant), shall be entitled to exchange
their shares of Warrant Stock, Common Stock (or such other stock or securities),
for securities or other property deliverable upon such reorganization,
reclassification, consolidation, merger, conveyance, dissolution, liquidation or
winding-up. Such notice shall be delivered at least thirty (30) days prior to
the date therein specified.
18. SEVERABILITY. If any term, provision, covenant or restriction of this
Warrant is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the
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terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
19. COUNTERPARTS. For the convenience of the parties, any number of
counterparts of this Warrant may be executed by the parties hereto and each such
executed counterpart shall be, and shall be deemed to be, an original
instrument.
20. NO INCONSISTENT AGREEMENTS. The Company will not on or after the date of
this Warrant enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the Holders of this Warrant or otherwise
conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to holders of the Company's securities under any other
agreements, except rights that have been waived.
21. SATURDAYS, SUNDAYS AND HOLIDAYS. If the Expiration Date falls on a
Saturday, Sunday or legal holiday, the Expiration Date shall automatically be
extended until 5:00 p.m. the next business day.
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IN WITNESS WHEREOF, the parties hereto have executed this Warrant as of
August 5, 1999.
INTEL CORPORATION ChipPAC, Inc.
By: /S/ Arvind Sodhani By: /S/ Gary Breton
--------------------------------- --------------------------------
Name: Arvind Sodhani Name: Gary Breton
------------------------------- ------------------------------
Title: Vice President and Treasurer Title: Vice President
------------------------------ ----------------------------
SIGNATURE PAGE TO THE WARRANT
OF
ChipPAC, Inc.
13
EXHIBIT 1
NOTICE OF EXERCISE
(To be executed upon exercise of Warrant)
ChipPAC, Inc. WARRANT NO. ___
The undersigned hereby irrevocably elects to exercise the right of purchase
represented by the within Warrant Certificate for, and to purchase thereunder,
the securities of ChipPAC, Inc., as provided for therein, and (check the
applicable box):
[ ] Tenders herewith payment of the exercise price in full in same-day funds in
the amount of $____________ for _________ such securities.
[ ] Elects the Net Issue Exercise option pursuant to Section 2.2 of the
Warrant, and accordingly requests delivery of a net of ______________ of
such securities, according to the following calculation:
X = Y (A-B) ( ) = (____) [(_____) - (_____)]
------- --------------------------
A (_____)
Where:
X = the number of shares of Warrant Stock to be issued to the Holder;
Y = the number of shares of Warrant Stock purchasable under the amount of
the Warrant being exchanged (as adjusted to the date of such calculation);
A = the Fair Market Value of one share of Common Stock; and
B = Purchase Price (as adjusted to the date of such calculation).
[ ] Elects the Easy Sale Exercise option pursuant to Section 2.3 of the
Warrant, and accordingly requests delivery of a net of ______________ of such
securities.
Please issue a certificate or certificates for such securities in the name of,
and pay any cash for any fractional share to (please print name, address and
social security number):
Name: __________________________
Address: __________________________
Signature: __________________________
Exhibits
Note: The above signature should correspond exactly with the name on the first
page of this Warrant Certificate or with the name of the assignee appearing in
the assignment form below.
If said number of shares shall not be all the shares purchasable under the
within Warrant Certificate, a new Warrant Certificate is to be issued in the
name of said undersigned for the balance remaining of the shares purchasable
thereunder rounded up to the next higher whole number of shares.
Exhibits
EXHIBIT 2
ASSIGNMENT
(To be executed only upon assignment of Warrant or a portion WARRANT NO. ___
thereof)
For value received, hereby sells, assigns and transfers unto _______________ the
within Warrant or a portion thereof, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint ___________________
attorney, to transfer said Warrant or such portion thereof on the books of the
within-named Company with respect to the number of shares of Warrant Stock set
forth below, with full power of substitution in the premises:
- ---------------------------------------------------------------------
Name(s) of Assignee(s) Address # of Warrant Shares
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
- ---------------------------------------------------------------------
And if said number of shares of Warrant Stock shall not be all the shares of
Warrant Stock represented by the Warrant, a new Warrant is to be issued in the
name of said undersigned for the balance remaining of the shares of Warrant
Stock registered by said Warrant.
Dated: _____________________________
Signature: _____________________________
Notice: The signature to the foregoing Assignment must correspond to the name
as written upon the face of this security in every particular, without
alteration or any change whatsoever; signature(s) must be guaranteed by an
eligible guarantor institution (banks, stock brokers, savings and loan
associations and credit unions with membership in an approved signature
guarantee medallion program) pursuant to SEC Rule 17Ad-15.
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