Exhibit 10.81
RESTRUCTURING, SETTLEMENT
AND MUTUAL RELEASE AGREEMENT
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This Restructuring, Settlement and Mutual Release Agreement (this "Agreement")
is entered into as of this 9th day of July, 1998, by and among Microelectronic
Packaging, Inc. ("MPI"), on behalf of itself and its predecessors, successors,
former or current subsidiaries, affiliates, officers, directors, shareholders,
agents, attorneys, representatives, insurers, employees and assigns
(collectively with MPI, the "MPI Releasees"), and NS Electronics Bangkok (1993)
Ltd. ("NSEB"), and its predecessors, successors, subsidiaries, affiliates,
officers, directors, stockholders, agents, attorneys, representatives, insurers,
employees and assigns (collectively with NSEB, the "NSEB Releasees").
W I T N E S S E T H:
WHEREAS, NSEB and MPI entered into the Loan and Security Agreement dated May
30, 1995 (the "Loan Agreement") and, in connection with the Loan Agreement, NSEB
loaned $1,500,000 to MPI pursuant to a Secured Promissory Note (the "Note") of
even date with the Loan Agreement, which Note calls for certain payments and
interest amounts which were thereafter due and payable periodically;
WHEREAS, MPI and NSEB entered into an Amended Loan and Security Agreement (the
"Amended Loan Agreement") and, in connection with the Amended Loan Agreement,
NSEB loaned $1,250,000 to MPI pursuant to a Second Secured Promissory Note (the
"Second Note" and, collectively with the Loan Agreement, the Note and the
Amended Loan Agreement, the "Loan Agreements") of even date with the Amended
Loan Agreement, which proceeds were used to pay off and cancel the Note, and
which Second Note calls for certain payments and interest amounts which were
thereafter due and payable periodically, such that as of December 31, 1997 the
balance of principal and unpaid interest owed pursuant to the Second Note was
$1,421,875;
WHEREAS, NSEB owes the sum of $665,000 to Microelectronic Packaging (S) Pte
Ltd, a subsidiary of MPI currently in liquidation ("MPS"), which is carried on
MPS' accounts as an account receivable (the "Account Receivable"), to which the
Development Bank of Singapore Limited ("DBS") has a priority claim in the MPS
liquidation proceeding, and NSEB wishes to satisfy its obligation to repay the
Account Receivable by offsetting it against the amounts owed to NSEB by MPI
under the Loan Agreements in connection with any settlement of the amounts due
under the Loan Agreements; and
WHEREAS, the parties wish to settle all obligations under the Loan Agreements,
and terminate and release all rights and obligations under such documents and
all other related agreements, and settle all other disputes that may exist
between MPI and each of the other MPI Releasees and NSEB and each of the other
NSEB Releasees.
NOW, THEREFORE, in consideration of the mutual promises contained herein and
for other good and sufficient consideration, the receipt and sufficiency of
which is hereby
acknowledged, the parties agree as follows:
1. Definitions.
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a. "Payment Date" shall mean the calendar date after MPI completes the full
performance of its obligation under subsection 2.a. of this Agreement.
b. "Release Date" shall be the later of the calendar date that is ninety
(90) days after the Payment Date and the calendar date upon which MPI completes
the full performance of its obligation under Section 2.b.
c. "Insolvency Action" shall mean the commencement of a voluntary or
involuntary case against MPI under the United States Bankruptcy Code or an
assignment for the benefit of creditors by MPI that is not dismissed within
sixty (60) days of its commencement.
d. Other defined terms shall have the meanings assigned to them herein.
2. Settlement. In order to settle the defaults, amounts owed, debts,
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liabilities and other obligations pursuant to, in connection with, or arising
out of the Loan Agreements and each of their respective related agreements,
letters, documents and instruments (collectively, the "Loan Documents"), MPI
agrees that, within six (6) calendar months of the Effective Date, it will:
a. pay to NSEB the amount of US$227,062.00, by wire transfer in accordance
with the wire transfer instructions provided by NSEB; and
b. provide to NSEB a written release executed by DBS providing that NSEB is
no longer liable for the Account Receivable.
3. Release Procedure. If and only if no Insolvency Action has occurred, then
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effective the Release Date:
a. NSEB, on behalf of itself and the other NSEB Releasees, agrees as
follows:
i. NSEB, on behalf of itself and each other NSEB Releasee, fully and
forever releases and discharges each of the MPI Releasees from and against any
and all claims, damages and causes of action they may have against each such
person or entity with respect to any matter under the provisions of, arising out
of or in connection with, the Loan Documents, including any breach of any
representation or warranty or noncompliance or nonfulfillment of any covenant or
agreement set forth in such documents; provided that such release and discharge
shall not extend to any claims, damages and causes of action any NSEB Releasee
may have against any MPI Releasee for fraud or willful misconduct with respect
to any of the Loan Documents.
ii. NSEB agrees that each of the Loan Documents, regardless of whether
they are in default, are fully and completely terminated and rendered devoid of
legal effect and unenforceable, such that even provisions of the Loan Documents
that, according to their terms, survive termination, are terminated and
nullified. Further, NSEB acknowledges and agrees that any loan, debt, liability
or other obligation created pursuant to or arising out of the Loan Documents, as
well as any writings, agreements, notes or certificates representing such loan,
debt, liability or obligations, are canceled and rendered devoid of force and
effect.
b. MPI, on behalf of itself and the other MPI Releasees, agrees as follows:
i. MPI, on behalf of itself and each other MPI Releasee, fully and
forever releases and discharges each of the NSEB Releasees from any claims,
damages, and causes of action it or they may have against any of them with
respect to any matter under the provisions of, arising out of or in connection
with the Loan Documents; provided that such release and discharge shall not
extend to any claims, damages and causes of action any MPI Releasee may have
against any NSEB Releasee for fraud or willful misconduct with respect to any of
the Loan Documents.
ii. MPI acknowledges and agrees that each of the Loan Documents are
fully and completely terminated and rendered devoid of force and effect, such
that even provisions of the Loan Documents and each of their respective related
agreements, letters, documents and instruments that, according to their terms,
survive termination, are terminated and nullified.
4. Confidentiality. No party to this Agreement shall, except as may be
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mandated by statutory or regulatory requirements, as may be required by legal
process in the course of actual litigation or in the case of a subpoena, as may
be necessary for MPI to negotiate with its creditors, disclose to others the
fact or terms of this settlement, the amounts referred to in this Agreement or
the fact of the payment of said amounts, except that each such party may
disclose to each such party's attorneys, accountant or other advisors to whom
the disclosure is necessary to effectuate the purposes for which such party has
consulted with such professional advisors and except that (i) MPI may file this
Agreement with any governmental or regulatory body, describe it and refer to it
in any filing it makes pursuant to federal and state securities laws or to its
Board of Directors or shareholders, and (ii) MPI may issue a press release
describing the general terms of this Agreement in connection with any public
filing it makes with any governmental or regulatory body.
5. Representations and Warranties.
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a. MPI. MPI represents and warrants that:
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i. It has all requisite corporate power and authority to execute and
deliver, and fulfill its obligations under this Agreement. This Agreement, upon
execution and delivery by MPI and assuming due and proper execution and delivery
by the other parties, will constitute a valid and binding obligation of MPI,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, moratorium and other laws of general
application affecting the enforcement of creditors' rights.
ii. No consent, approval, order or authorization, or registration,
qualification, designation, declaration or filing with, any federal, state or
local governmental authority on the part of MPI is required in connection with
the execution, delivery and performance of this Agreement by MPI, other than
state securities law filings.
iii. No consent, approval, waiver or other action by any person under
any contract, agreement, indenture, lease, instrument or other document to which
MPI is a party or by which it is bound is necessary for the execution, delivery
and performance of this Agreement by MPI.
b. NSEB. NSEB represents and warrants that:
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i. It has all requisite corporate power and authority to execute and
deliver, and fulfill its obligations under this Agreement. This Agreement, upon
execution and delivery by NSEB, and assuming due and proper execution and
delivery by MPI, will constitute a valid and binding obligation of NSEB,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, moratorium and other laws of general
application affecting the enforcement of creditors' rights.
ii. No consent, approval, order or authorization, or registration,
qualification, designation, declaration or filing with, any foreign, federal,
state or local governmental or other authority or third party on the part of
NSEB is required in connection with the execution, delivery and performance of
this Agreement.
iii. No consent, approval, waiver or other action by any person under
any contract, agreement, indenture, lease, instrument or other document or law,
ordinance, statute, rule or regulation to which NSEB is a party or by which it
or its property is bound is necessary for the execution, delivery and
performance of this Agreement.
6. Miscellaneous. MPI and NSEB hereby agree as follows:
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a. Severability. If any provision of this Agreement is found to be
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unenforceable, it shall not affect the enforceability of the remaining
provisions and the court shall enforce all remaining provisions to the extent
permitted by law. All parties agree that this Agreement is valid, binding and
enforceable on all parties.
b. Prior Agreements. This Agreement shall supersede and render null and
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void any and all prior agreements between MPI and/or any MPI Releasee, on one
hand, and NSEB and/or any NSEB Releasee, on the other hand, concerning the
subject matter contained herein.
c. Successors and Assigns. This Agreement shall bind and benefit each of
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NSEB and its successors and assigns and shall also bind and benefit each MPI and
its successors and assigns. This Agreement may not be assigned by MPI, by
operation of law (e.g., merger) or otherwise (e.g., sale of substantially all
assets), without the prior written consent of NSEB, except that no such consent
shall be required after the Release Date.
d. Governing Law. This Agreement shall be deemed to have been entered into
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in the State of California and shall be construed and interpreted in accordance
with the laws of California.
e. Jurisdiction. The parties to the Agreement hereby (i) irrevocably
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submit to the jurisdiction of the courts of the State of California and the
Federal courts of the United States sitting in the State of California for the
purpose of any action or proceeding arising out of or relating to this Agreement
and any other documents and instruments relating hereto, (ii) agree that all
claims in respect of any such action or proceeding may be heard and determined
in such courts, (iii) irrevocably waive (to the extent permitted by applicable
law) any objection which any of them now or hereafter may have to the laying of
venue of any such action or proceeding brought in any of the foregoing courts,
and any objection on the ground that any such action or proceeding in any such
court has been brought in an inconvenient forum and (iv) agree that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
permitted by law.
f. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
g. Titles and Subtitles. The titles and subtitles used in this Agreement
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are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
h. Amendment. No amendment, modification or waiver of this Agreement or
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any part thereof shall be effective unless it is in writing and is signed by MPI
and NSEB. No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof. Nor shall any waiver on
the part of any party of any such right, power or privilege, nor any single or
partial exercise of any such right, power or privilege, preclude any further
exercise thereof or the exercise of any other such right, power or privilege.
The rights and remedies herein provided are cumulative and are not exclusive of
any rights or remedies that any party may otherwise have at law or in equity.
The rights and remedies of any party based upon, arising out of or otherwise in
respect of any inaccuracy in or breach or nonfulfillment of or noncompliance
with any representation, warranty, covenant or agreement contained in this
Agreement shall in no way be limited by the fact that the act, omission,
occurrence or other state of facts upon which any claim of any such inaccuracy
or breach is based may also be the subject matter of any other representation,
warranty, covenant or agreement contained in this Agreement (or in any other
agreement between the parties) as to which there is no inaccuracy or breach.
i. Termination. This Agreement may be terminated upon the mutual written
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consent of MPI and NSEB. NSEB may terminate this Agreement upon three (3)
business days' written notice to MPI in the event (i) an Insolvency Action
occurs or (ii) MPI commits a material breach of this Agreement. Unless
previously terminated pursuant to Section 3 of this Agreement, the Loan
Documents shall remain in full force and effect upon any termination of this
Agreement.
j. Survival of Representations, Warranties, Covenants and Agreements. The
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representations, warranties, covenants and agreements contained in this
Agreement shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
k. Notices. All notices, demands or other communications to be given or
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delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid), mailed to the recipient by certified or registered mail,
return, receipt requested and postage prepaid, or transmitted by facsimile (with
request for immediate confirmation of receipt in a manner customary for
communications of such type and with physical delivery of the communication
being made by one of the other means specified in this Section as promptly as
practicable thereafter). Such notices, demands and other communications shall be
addressed as follows:
If to NSEB:
Attn: Dr. Ted Nunthirapakorn, Ph.D.
Chief Financial Officer
NS Electronics Bangkok Ltd.
40/10 Soi Lasalle, Sukhumvit 105
Bangna, Prakanong
Bangkok 10260, Thailand
If to MPI:
Attn: President
Microelectronic Packaging, Inc.
9577 Chesapeake Drive
San Diego, CA 92123
Telephone: (619) 292-7000
Telecopy: (619) 292-7881
with a copy to:
Brobeck, Phleger & Harrison LLP
Two Embarcadero Place
2200 Geng Road
Palo Alto, California 94303-0913
Attention: Warren T. Lazarow, Esq.
Telephone: (650) 424-0160
Telecopy: (650) 496-2885
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
(provided that notice of a change of address shall be effective only upon
receipt thereof).
m. Strict Construction. This Agreement is the result of arms-length
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negotiations between the parties hereto and has been prepared jointly by the
parties. In applying and interpreting the provisions of this Agreement, there
shall be no presumption that the Agreement was prepared by any one party or that
the Agreement shall be construed in favor of or against any one party.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on and as of the day and year first above written.
MICROELECTRONIC PACKAGING, INC.
By: /s/ Denis J. Trafecanty
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Denis J. Trafecanty
Chief Financial Officer
NS ELECTRONICS BANGKOK (1993) LTD.
By: /s/ Thakol Nunthirapakorn
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Dr. Ted Nunthirapakorn, Ph.D.
Chief Financial Officer