EXHIBIT 10.5
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AMENDED & RESTATED
REGISTRATION AGREEMENT
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THIS REGISTRATION AGREEMENT (this "Agreement") is made and entered
into as of August 5, 1999, by and among ChipPAC, Inc., a California corporation
(the "Company"), each of the Persons listed on Schedule I attached hereto (the
"Hyundai Shareholders"), each of the Persons listed on Schedule II attached
hereto (the "Bain Shareholders"), the SXI Shareholders (as defined in Section 9
hereof), Intel Corporation, a Delaware corporation ("Intel"), ChipPAC Equity
Investors LLC ("CSFB"), an affiliate of Credit Suisse First Boston and Sankaty
High Yield Asset Partners, L.P. ("Sankaty"). The Hyundai Shareholders, the Bain
Shareholders, the SXI Shareholders, Intel, CSFB and Sankaty are collectively
referred to herein as the "Shareholders," and each as a "Shareholder". Unless
otherwise provided in this Agreement, capitalized terms used herein shall have
the meanings set forth in paragraph 9 hereof.
The Hyundai Shareholders, the Company and ChipPAC Merger Corp., a
Delaware corporation ("MergerCorp."), are parties to that certain Agreement and
Plan of Recapitalization and Merger, dated as of March 13, 1999, as amended (the
"Recapitalization Agreement"). Intel and the Company are parties to that
certain Stock Purchase Agreement, dated as of August 5, 1999 (the "Purchase
Agreement"). CSFB, Sankaty and the Company are parties to that certain Stock
Purchase Agreement dated as of August 5, 1999 (the "CSFB Purchase Agreement").
In connection with the transactions contemplated by each of the Recapitalization
Agreement, the Purchase Agreement and the CSFB Purchase Agreement, the Company
has agreed to provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the closing of the
transactions contemplated by each of the Recapitalization Agreement, the
Purchase Agreement and the CSFB Purchase Agreement.
The parties hereto agree as follows:
1. Demand Registrations.
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(a) Requests for Registration. At any time, the holders of a majority
of the Bain Registrable Securities and the holders of a majority of the SXI
Registrable Securities may request registration under the Securities Act of all
or part of their Registrable Securities on Form S-1 or any similar long-form
registration ("Long-Form Registrations") or, if available, on Form S-2 or S-3 or
any similar short-form registration ("Short-Form Registrations"). The holders
of a majority of the Hyundai Registrable Securities may request registration
under the Securities Act of all or part of the Hyundai Registrable Securities
pursuant to a Long-Form Registration or a Short-Form Registration under the
circumstances and as set forth in paragraph 1(d) below. The holders of a
majority of the Intel Registrable Securities may request registration under the
Securities Act of all or part of the Intel Registrable Securities pursuant to a
Long-Form Registration or a Short-Form Registration under the circumstances and
as set forth in paragraph 1(e) below. Each request for a Demand Registration
shall specify the approximate number of Registrable Securities requested to be
registered and the anticipated per share price range for such offering. Within
ten days after receipt of any such request, the Company shall give written
notice of such requested registration to all other holders of
Registrable Securities and, subject to paragraph 1(f) below, will include in
such registration all Registrable Securities with respect to which the Company
has received written requests for inclusion therein within 15 days after the
receipt of the Company's notice. All registrations requested pursuant to this
paragraph 1(a) are referred to herein as "Demand Registrations."
(b) Long-Form Registrations. The holders of a majority of the Bain
Registrable Securities and the holders of a majority of the SXI Registrable
Securities will be entitled to request unlimited Long-Form Registrations in
which the Company will pay all Registration Expenses. The Company will pay all
Registration Expenses in connection with any registration initiated as a Long-
Form Registration whether or not it has become effective. All Long-Form
Registrations shall be underwritten registrations.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to paragraph 1(b), the holders of a majority of
the Bain Registrable Securities and the holders of a majority of the SXI
Registrable Securities will be entitled to request unlimited Short-Form
Registrations in which the Company will pay all Registration Expenses. Demand
Registrations will be Short-Form Registrations whenever the Company is permitted
to use any applicable short form. After the Company has become subject to the
reporting requirements of the Securities Exchange Act, the Company will use its
best efforts to make Short-Form Registrations available for the sale of
Registrable Securities.
(d) Hyundai Demand Registration Rights. At any time after the
Company's Common Stock is publicly traded on any national securities exchange or
quoted as a NASDAQ "National Market Security" and prior to the seventh
anniversary of the closing of the transactions contemplated by the
Recapitalization Agreement, the holders of a majority of the Hyundai Registrable
Securities will be entitled to request one Long-Form Registration in which the
Company will pay all Registration Expenses (the "Hyundai Demand Registration");
provided that the Company will not be obligated to effect such Hyundai Demand
Registration unless the holders of the Hyundai Registrable Securities request to
include at least 50% of the Hyundai Registrable Securities. The Hyundai Demand
Registration will be a Short-Form Registration if the Company is permitted to
use any applicable short form. A registration shall not count as the one
permitted Hyundai Demand Registration until it has become effective (unless such
registration has not become effective due solely to the fault of the holders
requesting such registration) and unless the holders of Hyundai Registrable
Securities are able to register and sell at least 75% of the Hyundai Registrable
Securities requested to be included in such registration; provided, however,
that the holders of Hyundai Registrable Securities shall not be entitled to
request more than one such registration in any six month period even if the
previous registration did not count as the one permitted Hyundai Demand
Registration. Nevertheless, the Company shall pay all Registration Expenses in
connection with any registration that was initiated as an Hyundai Demand
Registration whether or not it has become effective and whether or not such
registration has counted as the one permitted Hyundai Demand Registration.
(e) Intel Demand Registration Rights. At any time after the Company's
Common Stock is publicly traded on any national securities exchange or quoted as
a NASDAQ "National Market Security" and prior to the seventh anniversary of the
closing of the transactions contemplated by the Purchase Agreement, the holders
of a majority of the Intel Registrable Securities will be
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entitled to request one Long-Form Registration in which the Company will pay all
Registration Expenses (the "Intel Demand Registration"); provided that the
Company will not be obligated to effect such Intel Demand Registration unless
the holders of the Intel Registrable Securities request to include at least 50%
of the Intel Registrable Securities. The Intel Demand Registration will be a
Short-Form Registration if the Company is permitted to use any applicable short
form. A registration shall not count as Intel's one permitted Intel Demand
Registration until it has become effective (unless such registration has not
become effective due solely to the fault of the holders requesting such
registration) and unless the holders of Intel Registrable Securities are able to
register and sell at least 75% of the Intel Registrable Securities requested to
be included in such registration; provided, however, that the holders of Intel
Registrable Securities shall not be entitled to request more than one such
registration in any six month period even if the previous registration did not
count as Intel's one permitted Intel Demand Registration. Nevertheless, the
Company shall pay all Registration Expenses in connection with any registration
that was initiated as an Intel Demand Registration whether or not it has become
effective and whether or not such registration has counted as Intel's one
permitted Intel Demand Registration.
(f) Priority on Demand Registrations. The Company will not include in
any Demand Registration any securities which are not Registrable Securities
without the prior written consent of (i) the holders of a majority of the
Registrable Securities included in such registration, in the case of any Demand
Registration other than a Hyundai Demand Registration or an Intel Demand
Registration, (ii) the holders of a majority of the Hyundai Registrable
Securities in the case of a Hyundai Demand Registration and (iii) the holders of
a majority of the Intel Registrable Securities in the case of an Intel Demand
Registration. If a Demand Registration is an underwritten offering and the
managing underwriters advise the Company in writing that in their opinion the
number of Registrable Securities and, if permitted hereunder, other securities
requested to be included in such offering exceeds the number of Registrable
Securities and other securities, if any, which can be sold therein without
adversely affecting the marketability of the offering, (i) in the case of any
Demand Registration other than a Hyundai Demand Registration or an Intel Demand
Registration, the Company will include in such registration prior to the
inclusion of any securities which are not Registrable Securities the number of
Registrable Securities requested to be included which in the opinion of such
underwriters can be sold without adversely affecting the marketability of the
offering, pro rata among the respective holders thereof on the basis of the
number of shares of Registrable Securities owned by each such holder, (ii) in
the case of a Hyundai Demand Registration, the Company will include in such
registration (A) first, the securities the holders of the Hyundai Registrable
Securities propose to sell, pro rata among the respective holders thereof on the
basis of the number of shares of Registrable Securities owned by each such
holder, (B) second, the Registrable Securities requested to be included in such
registration by the other holders of Registrable Securities, pro rata among such
other holders on the basis of the number of shares of Registrable Securities
owned by each such holder and (C) third, other securities requested to be
included in such registration and (iii) in the case of an Intel Demand
Registration, the Company will include in such registration (A) first, the
securities the holders of the Intel Registrable Securities propose to sell, pro
rata among the respective holders thereof on the basis of the number of shares
of Registrable Securities owned by each such holder, (B) second, the Registrable
Securities requested to be included in such registration by the other holders of
Registrable Securities, pro rata among such other holders on the basis of the
number of shares of Registrable Securities owned by each such holder and (C)
third, other securities requested to be included in such registration.
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(g) Restrictions on Demand Registrations. The Company may postpone
for up to ninety days the filing or the effectiveness of a registration
statement for a Demand Registration if the Company and the holders of at least a
majority of the Registrable Securities agree that such Demand Registration would
reasonably be expected to have a material adverse effect on any proposal or plan
by the Company or any of its Subsidiaries to engage in any acquisition of assets
(other than in the ordinary course of business) or any merger, consolidation,
tender offer, reorganization or similar transaction; provided that in such
event, the holders of a majority of Registrable Securities requesting such
Demand Registration will be entitled to withdraw such request and, if such
request is withdrawn, the Company will pay all Registration Expenses in
connection with such registration; and provided further, that in the case of any
Intel Demand Registration, the Company shall only be permitted to effect two (2)
such non-consecutive postponements during any twelve-month period.
(h) Selection of Underwriters. The holders of a majority of the Bain
Registrable Securities and the holders of a majority of the SXI Registrable
Securities included in any Demand Registration (other than a Hyundai Demand
Registration or an Intel Demand Registration) will have the right to select the
investment banker(s) and manager(s) to administer the offering, subject to the
Company's approval, which will not be unreasonably withheld. The Company will
have the right to select the investment banker(s) and manager(s) to administer
any Hyundai Demand Registration, subject to the approval of a majority of the
Hyundai Registrable Securities included in any Hyundai Demand Registration,
which will not be unreasonably withheld. The Company will have the right to
select the investment banker(s) and manager(s) to administer any Intel Demand
Registration, subject to the approval of a majority of the Intel Registrable
Securities included in any Intel Demand Registration, which will not be
unreasonably withheld.
(i) Other Registration Rights. Except as provided in this Agreement,
the Company will not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the holders of a majority of the Registrable Securities.
2. Piggyback Registrations.
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(a) Right to Piggyback. Whenever the Company proposes to register any
of its securities (including any proposed registration of the Company's
securities by any third party) under the Securities Act (other than pursuant to
a Demand Registration or a registration on Form S-4 or S-8 or any successor or
similar forms) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), whether or
not for sale for its own account, the Company will give prompt written notice to
all holders of Registrable Securities of its intention to effect such a
registration and, subject to paragraph 2(c) and (d) below, will include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 15 days after the receipt
of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggyback
Registrations.
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(c) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing (with a copy to each party hereto
requesting registration of Registrable Securities) that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of such offering, the Company will include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities requested to be included in such registration, pro rata
among the holders of such Registrable Securities on the basis of the number of
shares owned by each such holder and (iii) third, other securities requested to
be included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company will include
in such registration (i) first, the securities requested to be included therein
by the holders requesting such registration and the Registrable Securities
requested to be included in such registration, pro rata among the holders of
such securities on the basis of the number of shares owned by each such holder
and (ii) second, other securities requested to be included in such registration.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the selection of investment banker(s) and manager(s) for
the offering shall be made by the Company and must be approved by the holders of
a majority of the Bain Registrable Securities and the holders of a majority of
the SXI Registrable Securities included in such Piggyback Registration. Such
approval shall not be unreasonably withheld.
(f) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, the Company will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-4 or S-8 or any successor form), whether on
its own behalf or at the request of any holder or holders of such securities,
until a period of at least ninety days has elapsed from the effective date of
such previous registration.
3. Holdback Agreements.
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(a) Each holder of Registrable Securities agrees not to effect any
public sale or distribution (including sales pursuant to Rule 144) of equity
securities of the Company, or any securities, options or rights convertible into
or exchangeable or exercisable for such securities, during the seven days prior
to and the 180-day period beginning on the effective date of any underwritten
Demand Registration or any underwritten Piggyback Registration (except as part
of such underwritten registration), unless the underwriters managing the
registered public offering otherwise agree; it being agreed that, with respect
to Intel, in the case of any underwritten Demand Registration or underwritten
Piggyback Registration other than the Company's Initial Public Offering, Intel
shall only be obligated to a lock-up during the seven days prior to and the 90-
day
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period beginning on the effective date of any such underwritten offering if
Intel then holds 5% or more of the Company's outstanding common stock (and, if
Intel then holds less than 5% of the Company's common stock, no such lock-up
shall be required in connection with any such underwritten offering, unless
Intel otherwise agrees).
(b) The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 180-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration or pursuant to registrations
on Form S-4 or S-8 or any successor form), unless the underwriters managing the
registered public offering otherwise agree, and (ii) to cause each holder of its
Common Stock, or any securities convertible into or exchangeable or exercisable
for Common Stock, purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof (including the registration of Class A
Common and Class L Common held by a holder of Registrable Securities requesting
registration as to which the Company has received reasonable assurances that
only Registrable Securities will be distributed to the public), and pursuant
thereto the Company will as expeditiously as possible:
(a) prepare and (within 60 days after the end of the period within
which requests for registration may be given to the Company) file with the
Securities and Exchange Commission a registration statement with respect to such
Registrable Securities and thereafter use its best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company will furnish to the counsel selected by the holders of a majority of
the Registrable Securities covered by such registration statement copies of all
such documents proposed to be filed, which documents will be subject to review
and comment of such counsel);
(b) notify each holder of Registrable Securities of the effectiveness
of each registration statement filed hereunder and prepare and file with the
Securities and Exchange Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of either
(i) not less than six months (subject to extension pursuant to paragraph 7(b))
or, if such registration statement relates to an underwritten offering, such
longer period as in the opinion of counsel for the underwriters a prospectus is
required by law to be delivered in connection with sales of Registrable
Securities by an underwriter or dealer or (ii) such shorter period as will
terminate when all of the securities covered by such registration statement have
been disposed of in accordance with the intended methods of disposition by the
seller or sellers thereof set forth in such registration statement (but in any
event not before the expiration of any longer period required under the
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Securities Act), and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement until such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph (d), (ii) subject itself to taxation in any
such jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the discovery of the happening of
any event as a result of which, the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of any such
seller, the Company will prepare and furnish to such seller a reasonable number
of copies of a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including, without limitation, effecting a stock split
or a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney,
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accountant or other agent retained by any such seller or underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any securities included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(l) obtain one or more comfort letters, dated the effective date of
such registration statement (and, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting
agreement), signed by the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by comfort
letters as the holders of a majority of the Registrable Securities being sold
reasonably request (so long as such Registrable Securities constitute at least
10% of the securities covered by such registration statement); and
(m) provide a legal opinion of the Company's outside counsel, dated
the effective date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement), with respect to the registration statement, each
amendment and supplement thereto, the prospectus included therein (including the
preliminary prospectus) and such other documents relating thereto in customary
form and covering such matters of the type customarily covered by legal opinions
of such nature.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information regarding
such seller and the distribution of such securities as the Company may from time
to time reasonably request in writing.
5. Registration Expenses.
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(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called "Registration
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Expenses"), will be borne as provided in this Agreement, except that the Company
will, in any event, pay its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance and the expenses and fees for listing the
securities to be registered on each securities exchange on which similar
securities issued by the Company are then listed or on the NASD automated
quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company will reimburse the holders of Registrable Securities
covered by such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration (or two counsels, if such registration includes
holders of both Bain Registrable Securities and SXI Registrable Securities).
(c) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
will pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
will be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered
for each seller.
6. Indemnification.
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(a) The Company agrees to indemnify and hold harmless, to the extent
permitted by law, each holder of Registrable Securities, its officers and
directors and each Person that controls such holder (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities, joint or
several, to which such holder or any such director or officer or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon (i)
any untrue or alleged untrue statement of material fact contained (A) in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or (B) in any application or other document or
communication (in this paragraph 6 collectively called an "application")
executed by or on behalf of the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
qualify any securities covered by such registration statement under the "blue
sky" or securities laws thereof, or (ii) any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company will reimburse such holder and each such
director, officer and controlling person for any legal or any other expenses
incurred by them in connection with investigating or defending any such loss,
claim, liability, action or proceeding; provided that the Company will not be
liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or alleged untrue statement, or omission or
alleged omission, made in such registration statement, any such prospectus or
preliminary prospectus or any amendment or supplement thereto, or in any
application, in reliance upon, and in conformity with, written information
prepared and furnished to the Company by such holder expressly for use therein
or by such holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering, the Company will
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indemnify such underwriters, their officers and directors and each Person that
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify and hold harmless
the Company, its directors and officers and each other Person who controls the
Company (within the meaning of the Securities Act) against any losses, claims,
damages, liabilities, joint or several, to which such holder or any such
director or officer or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon (i) any untrue or alleged untrue
statement of material fact contained in the registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or in
any application or (ii) any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is
made in such registration statement, any such prospectus or preliminary
prospectus or any amendment or supplement thereto, or in any application, in
reliance upon and in conformity with written information prepared and furnished
to the Company by such holder expressly for use therein, and such holder will
reimburse the Company and each such director, officer and controlling Person for
any legal or any other expenses incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided that the obligation to indemnify will be individual to each
holder and will be limited to the net amount of proceeds received by such holder
from the sale of Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and will survive the transfer of securities. The Company also
agrees to make such provisions, as are reasonably requested by any indemnified
party, for contribution to such party in the event the Company's indemnification
is unavailable for any reason.
-10-
7. Participation in Underwritten Registrations.
-------------------------------------------
(a) No Person may participate in any registration hereunder which is
underwritten unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including, without
limitation, pursuant to the terms of any over-allotment or "green shoe" option
requested by the managing underwriter(s), provided that no holder of Registrable
Securities will be required to sell more than the number of Registrable
Securities that such holder has requested the Company to include in any
registration) and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(b) Each Person that is participating in any registration hereunder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in paragraph 4(e) above, such Person will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by such paragraph 4(e). If
the Company gives any such notice, the applicable time period mentioned in
paragraph 4(b) during which a Registration Statement is to remain effective will
be extended by the number of days during the period from and including the date
of the giving of such notice pursuant to this paragraph to and including the
date when each seller of a Registrable Security covered by such registration
statement has received the copies of the supplemented or amended prospectus
contemplated by paragraph 4(e).
8. Current Public Information. At all times after the Company has
filed a registration statement with the Securities and Exchange Commission
pursuant to the requirements of either the Securities Act or the Securities
Exchange Act, the Company will file all reports required to be filed by it under
the Securities Act and the Securities Exchange Act and the rules and regulations
adopted by the Securities and Exchange Commission thereunder, and will take such
further action as any holder or holders of Registrable Securities may reasonably
request, all to the extent required to enable such holders to sell Registrable
Securities pursuant to Rule 144 adopted by the Securities and Exchange
Commission under the Securities Act (as such rule may be amended from time to
time) or any similar rule or regulation hereafter adopted by the Securities and
Exchange Commission. Upon request, the Company shall deliver to any holder of
Registrable Securities a written statement confirming the Company's compliance
with such requirements.
9. Definitions.
-----------
"Affiliate" shall have the meaning assigned to such term in the
Shareholders Agreement.
"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 other
-11-
reorganization, including a recapitalization or exchange
and (iii) 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, equity securities are issued which do not
participate in the residual equity of the Company ("Non-Participating
Securities"), such Non-Participating Securities will not be Registrable
Securities. As to any particular shares constituting Bain Registrable
Securities, such shares will cease to be Bain 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.
"Class A Common" means the Class A Common Stock, par value $.01 per
share, of the Company.
"Class L Common" means the Class L Common Stock, par value $.01 per
share, of the Company.
"Common Stock" means both Class A Common and Class L Common.
"Family Group" shall have the meaning assigned to such term in the
Shareholders Agreement.
"Financing Source Registrable Securities" means (i) any shares of
Common Stock issued to CSFB or Sankaty pursuant to the CSFB Purchase Agreement,
(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 and (iii) 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 Financing Source Registrable Securities shall not be considered
Financing Source 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
Financing Source Registrable Securities, such shares will cease to be Financing
Source 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.
"Hyundai Registrable Securities" means (i) any shares of Common Stock
received by the Hyundai Shareholders pursuant to the Recapitalization Agreement,
(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 and (iii) any other shares of Common Stock held by Persons holding
securities described in clause (i) or (ii)
-12-
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. As to any particular shares
constituting Hyundai Registrable Securities, such shares will cease to be
Hyundai 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.
"Initial Public Offering" means a public offering and sale of the
Common Stock pursuant to an effective registration statement under the
Securities Act, if immediately thereafter the Company has publicly held Common
Stock listed on a national securities exchange of the NASD automated quotation
system.
"Intel Registrable Securities" means (i) any shares of Common Stock
issued upon conversion of the Class A Preferred Stock, par value $.01 per share
issued pursuant to the Purchase Agreement, (ii) any shares of Common Stock
issued upon exercise of all or any portion of the Warrant issued pursuant to the
Purchase Agreement, (iii) any equity securities issued or issuable directly or
indirectly with respect to the securities referred to in clause (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,
including a recapitalization or exchange and (iv) any other shares of Common
Stock held by Persons holding securities described in clause (i), (ii) or (iii)
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 Intel Registrable Securities shall
not be considered Intel 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 Intel Registrable Securities, such shares will cease to be Intel
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.
"Person" means an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and a government or any
department or agency thereof.
"Registrable Securities" means collectively the Hyundai Registrable
Securities, the Intel Registrable Securities, the Bain Registrable Securities,
the SXI Registrable Securities and the Financing Source Registrable Securities.
For purposes of this Agreement, a Person will be deemed to be a holder of
Registrable Securities whenever such Person has the right to acquire such
Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
-13-
"Securities and Exchange Commission" includes any governmental body or
agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar federal law then in force.
"Shareholder Shares" shall have the meaning assigned to such term in
the Shareholders Agreement.
"Shareholders Agreement" means the Shareholders Agreement, dated of
even date herewith, by and among the Company and the Shareholders.
"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
and (iii) 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. As to any
particular shares constituting SXI Registrable Securities, such shares will
cease to be SXI 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 Shareholders" means SXI Group LLC, a Delaware limited liability
company; Billig Family Limited Partnership; Frederick K. 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 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 Registrable Securities held by all such
transferees pursuant to this clause do not exceed 10% of the SXI Registrable
Securities. "Regulatory Problem" means, with respect to any person, any set of
facts or circumstances 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.
-14-
10. Miscellaneous.
-------------
(a) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Adjustments Affecting Registrable Securities. The Company will
not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would adversely
affect the marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(c) 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 any party hereto will have the right to injunctive relief, in
addition to all of its other rights and remedies at law or in equity, to enforce
the provisions of this Agreement.
(d) Amendments and Waivers. 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 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.
(e) Successors and Assigns. This Agreement 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 Agreement 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.
(f) Severability. Whenever possible, each provision of this Agreement
will 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 will not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
(g) Counterparts. This Agreement 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.
-15-
(h) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(i) Governing Law. All issues concerning the enforceability, validity
and binding effect of this Agreement 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.
(j) Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement 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 indicated below or, if no address is so indicated for
any particular Shareholder, at the address listed in the Company's records:
If to the Company:
-----------------
ChipPAC, Inc.
3151 Coronado Drive
Santa Clara, California 95054
U.S.A.
Attention: CEO
Facsimile: (408) 486-5914
If to any of the Hyundai Shareholders:
-------------------------------------
c/o Hyundai Electronics America
3101 North First Street
San Jose, California 95134
U.S.A.
Attention: Dr. C.S. Park
Facsimile: (408) 232-8101
With a copy to:
--------------
Brobeck Phleger & Harrison LLP
Two Embarcadero Place
2200 Geng Road
Palo Alto, California 94303
U.S.A.
Attention: Rod J. Howard
Facsimile: (650) 496-2777
-16-
If to Intel:
-----------
c/o Intel Corporation
2200 Mission College Boulevard
RN6-46
Santa Clara, California 95052
U.S.A.
Attention: M&A Portfolio Manager
Facsimile: (408) 765-0569
With a copy to:
--------------
Gibson, Dunn & Crutcher LLP
1530 Page Mill Road
Palo Alto, California 94304-1125
Attention: Lawrence Calof
Facsimile: (650) 849-5333
If to any of the Bain Shareholders:
----------------------------------
c/o Bain Capital II, Inc.
One Embarcadero, Suite 2260
San Francisco, California 94111
Attention David Dominik
Prescott Ashe
Facsimile: (415) 627-1333
and to:
------
c/o Bain Capital, Inc.
Two Copley Place
Boston, Massachusetts 02116
U.S.A.
Attention: Edward Conard
Facsimile: (617) 572-3274
With a copy to:
--------------
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attention: Jeffrey C. Hammes, P.C.
Gary M. Holihan
Facsimile: (312) 861-2200
-17-
If to any of the SXI Shareholders:
---------------------------------
c/o Citicorp Venture Capital, Ltd.
399 Park Avenue
New York, New York 10043
U.S.A.
Attention: Michael A. Delaney
Paul C. Schorr IV
Facsimile: (212) 888-2940
With a copy to:
--------------
Dechert Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, Pennsylvania 19103
U.S.A.
Attention: G. Daniel O'Donnell
Geraldine A. Sinatra
Facsimile: (215) 994-2222
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.
* * * * *
-18-
IN WITNESS WHEREOF, the parties have executed this Registration Agreement on
the day and year first above written.
CHIPPAC, INC.
By: /s/ Gary Breton
__________________________________
Its:__________________________________
THE HYUNDAI SHAREHOLDERS:
HYUNDAI ELECTRONICS AMERICA
By: /s Baxon S. Kim
__________________________________
Its:__________________________________
INTEL:
INTEL CORPORATION
By: /s/ Arvind Sodhani
__________________________________
Its: Vice President and Treasurer
__________________________________
FINANCING SOURCES:
CSFB:
CHIPPAC EQUITY INVESTORS LLC
By: Merchant Capital, Inc.
Its: Managing Member
By:
__________________________________
Its: Vice President
__________________________________
SANKATY:
SANKATY HIGH YIELD ASSET
PARTNERS, L.P.
By:
__________________________________
Its: Managing Director
__________________________________
THE BAIN SHAREHOLDERS:
BAIN CAPITAL FUND VI, L.P.
By: Bain Capital Partners VI, L.P.
Its: General Partner
By: Bain Capital Investors, Inc.
Its: General Partner
By: /s/ David Dominik
__________________________________
A Managing Director
BCIP ASSOCIATES II
By: /s/ David Dominik
__________________________________
A General Partner
BCIP ASSOCIATES II-B
By: /s/ David Dominik
__________________________________
A General Partner
BCIP ASSOCIATES II-C
By: /s/ David Dominik
__________________________________
A General Partner
BCIP TRUST ASSOCIATES II
By: Bain Capital, Inc.
Its: General Partner
By: /s/ David Dominik
__________________________________
A Managing Director
BCIP TRUST ASSOCIATES II-B
By: Bain Capital, Inc.
Its: General Partner
By: /s/ David Dominik
__________________________________
A Managing Director
PEP INVESTMENTS PTY., LTD.
By: /s/ David Dominik
__________________________________
Its:_________________________________
RANDOLPH STREET PARTNERS II
By: /s/ Jeffrey Hammes
__________________________________
A General Partner
RANDOLPH STREET PARTNERS
1998 DIF, LLC
By: /s/ Jeffrey Hammes
__________________________________
Its:_________________________________
THE SXI SHAREHOLDERS:
SXI GROUP LLC
By: /s/ Paul C. Schorr IV
________________________________________
Its: Vice President and Assistant Secretary
_______________________________________
BILLIG FAMILY LIMITED PARTNERSHIP
By: /s/ William Billig
________________________________________
Its:
_______________________________________
/s/ Frederick Minturn
_____________________________________
Frederick K. Minturn
SCHEDULE I
The Hyundai Shareholders
------------------------
Hyundai Electronics America and its permitted transferees
pursuant to Section 2(e)(i) of the Shareholders Agreement
Hyundai Electronics Industries Co., Ltd. to the extent that it becomes
the holder of any shares of Hyundai Registrable Securities pursuant to
Section 2.3 of the Recapitalization Agreement and its permitted transferees
pursuant to Section 2(e)(i) of the Shareholders Agreement
SCHEDULE II
The Bain Shareholders
---------------------
Bain 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.
Randolph Street Partners II
Randolph Street Partners 1999 DIF, LLC