EXHIBIT "F"
IBM PROCEEDS AGREEMENT
THIS IBM PROCEEDS AGREEMENT ("IBM Agreement") is entered into
effective as of this day _________, 1999 ("Effective Date"), between
Microelectronic Packaging, Inc. ("MPI"), on behalf of itself and its
predecessors, successors, former and current subsidiaries, affiliates,
shareholders, directors, officers, agents, attorneys, representatives, insurers,
employees and assigns (collectively with MPI the "MPI Group"); and Transpac
Capital Pte Ltd ("Transpac Capital"), Transpac Industrial Holdings Ltd
("Transpac Holdings"), Regional Investment Company Ltd ("Regional Investment"),
and Natsteel Equity III Pte Ltd ("Natsteel Equity"), and their respective
predecessors, successors, former and current subsidiaries, affiliates,
shareholders, directors, officers, agents, attorneys, representatives, insurers,
employees and assigns (collectively the "Investor Group"). This IBM Agreement is
being entered into between the MPI and the Investor Group pursuant to the
applicable terms and conditions of the Debt Conversion and Mutual Settlement and
Release Agreement dated as of the Effective Date ("Conversion Agreement"),
entered into between the MPI Group and the Investor Group. Unless otherwise
defined herein, capitalized terms appearing in this IBM Agreement shall have the
meanings defined for such terms in the Conversion Agreement.
1. Defined Terms. In addition to defined terms whose meanings may be
-------------
defined elsewhere in this IBM Agreement or in the Conversion Agreement, the
following terms shall have the meanings defined for such terms in this Section
1:
1.1 "Covered Agreements" means one or both of the following
agreements entered into by and between MPI and International Business Machines
Corporation ("IBM"): (a) the Purchase Option Agreement dated August 4, 1994 by
and between IBM and MPI; and (b) the Multilayer Technology Transfer and
Licensing Agreement dated August 4, 1994 between IBM and MPI.
1.2 "Covered Payments" means the gross monetary proceeds MPI
receives directly from IBM or any agent of IBM pursuant to any cash settlement,
monetary award granted pursuant to court-ordered arbitration or mediation
proceedings, or court order based upon claims for monetary damages, in any
manner arising under any one or both of the Covered Agreements.
1.3 "Net MPI Proceeds" means the Covered Payments, less (a) the
first Three Million Three Hundred Thirty Three Thousand Dollars and Thirty Three
Cents ($3,333,333.33) of Covered Payments MPI receives, (b) any portion of the
Covered Payments that MPI is obligated to pay, and in fact pays, to MPI's legal
counsel and/or other parties other than the Investor Group or the Development
Bank of Singapore Limited ("DBS"), in exchange for such legal counsel's and/or
other parties' services in seeking enforcement of the Covered Agreements and
collection of the Covered Payments ("Compensation Payments"), and (c) the total
amount of all fees and expenses MPI has incurred that are directly related to
seeking
enforcement of the Covered Agreements and/or collection of the Covered Payments,
including without limitation, legal fees and expenses, but excluding any amount
included in Compensation Payments ("Enforcement Expenses"). In the event the
Covered Payments are to be paid in a series of installments ("Installment
Payments"), then the total amount of the Compensation Payments and the
Enforcement Expenses ("Covered Payment Deductions") shall be spread out and
applied to each of the Installment Payments on a pro-rata basis, meaning that
each of the Installment Payments shall be reduced by an amount calculated by
multiplying the total amount of the Covered Payment Deductions by a fraction,
the numerator of which is the amount of the Installment Payment in question, and
the denominator of which is the total amount of all of the Installment Payments
to be paid. The number resulting from this multiplication shall be the Net MPI
Proceeds with respect to the Installment Payment in question.
2. Investor Group Percentages. Not later than thirty (30) days after
--------------------------
MPI receives any Net MPI Proceeds, MPI shall pay to the respective members of
the Investor Group a percentage of the Net MPI Proceeds ("Investor Group
Payments") equal to the percentage set forth opposite the name of such member as
follows ("Investor Group Percentage"):
Name of Member of Investor Group Percentage of Net MPI Proceeds
--------------------------------------------------------------------
Transpac Capital 12.090%
Transpac Holdings 11.900%
Regional Investment 3.280%
Natsteel Equity 2.730%
--------------------------------------------------------------------
TOTAL for all members of the Investor Group 30.000%
In the event the Covered Payments are to be paid in a series of
installments, (a) then not later than thirty (30) days after MPI receives a
particular Installment Payment, MPI shall pay to the respective members of the
Investor Group an amount equal to the Installment Payment in question,
multiplied by the applicable Investor Group Percentage.
3. Consideration. MPI and the Investor Group agree that their
-------------
respective rights and obligations under the Conversion Agreement constitute
sufficient consideration to cause the provisions of this IBM Agreement to be
enforceable against the MPI Group and the Investor Group in accordance with its
terms.
4. Miscellaneous Provisions.
------------------------
4.1 Governing Law. This IBM Agreement shall in all respects be
-------------
construed, interpreted and enforced in accordance with and governed by the laws
of the State of California, United States of America. Any legal action between
the parties regarding this IBM Agreement shall be brought in, and the parties
hereby consent to the jurisdiction of and venue in,
2
either (a) the federal and state courts located in the County of San Diego,
State of California, United States of America; or (b) the courts located in the
country of Singapore.
4.2 Notices. Any notice, demand or other communication required
-------
or permitted under this IBM Agreement shall be deemed given and delivered when
in writing and (a) personally served upon the receiving party, or (b) upon the
third (3rd) calendar day after mailing to the receiving party by either (i)
United States registered or certified mail, postage prepaid, or (ii) FedEx or
other comparable overnight delivery service, delivery charges prepaid, and
addressed as follows:
To MPI: Microelectronic Packaging, Inc.
9577 Chesapeake Drive
San Diego, CA 92123
Attn: Chief Executive Officer
To any member of Transpac Capital Pte Ltd
the Investor Group 6 Shenton Way
#20-09 DBS Building
Tower Two
Singapore 068809
Attn: Wong Lin Hong
Any party may change the address specified in this section by giving the other
party notice of such new address in the manner set forth herein.
4.3 Severability. In the event that any provision of this IBM
------------
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or invalid, then this IBM Agreement shall continue in
full force and effect without said provision. If this IBM Agreement continues in
full force and effect as provided above, the parties shall replace the invalid
provision with a valid provision which corresponds as far as possible to the
spirit and purpose of the invalid provision.
4.4 Counterparts. This IBM Agreement may be executed in any
------------
number of counterparts, each of which may be executed by less than all of the
parties hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
document.
4.5 Entire Agreement. This IBM Agreement, the Conversion
----------------
Agreement, the other Ancillary Agreements, and the documents and agreements
contemplated herein and therein, constitute the entire agreement between the
parties with respect to the subject matter hereof, and supersede all prior oral
or written agreements, representations or warranties between the parties other
than those set forth herein or herein provided for.
4.6 Successors and Assigns. Except as specifically permitted
----------------------
pursuant to the terms and conditions hereof, no party shall be permitted to
assign their respective rights or
3
obligations under this IBM Agreement without the prior written consent of the
other parties. The provisions hereof shall inure to the benefit of, and be
binding upon, the permitted successors and assigns, heirs, executors, and
administrators of the parties hereto.
4.7 Amendment and Waiver. No modification or waiver of any
--------------------
provision of this IBM Agreement shall be binding upon the party against whom it
is sought to be enforced, unless specifically set forth in writing signed by an
authorized representative of that party. A waiver by any party of any of the
terms or conditions of this IBM Agreement in any one instance shall not be
deemed or construed to be a waiver of such terms or conditions for the future,
or of any subsequent breach thereof. The failure by any party hereto at any time
to enforce any of the provisions of this IBM Agreement, or to require at any
time performance of any of the provisions hereof, shall in no way to be
construed to be a waiver of such provisions or to affect either the validity of
this IBM Agreement or the right of any party to thereafter enforce each and
every provision of this IBM Agreement.
4.8 Survivability. All of the representations, warranties,
-------------
agreements and obligations of the parties pursuant to this IBM Agreement shall
survive any issuance of the Shares by MPI to the Investor Group.
IN WITNESS WHEREOF, the parties hereto have duly executed this IBM
Agreement as of the date first above written.
MICROELECTRONIC PACKAGING, INC. TRANSPAC CAPITAL PTE LTD
By:____________________________ By:_______________________________
Signature Signature
Print Print
Name:__________________________ Name:_____________________________
Print Print
Title:_________________________ Title:____________________________
[The remainder of this page has been intentionally left blank.]
4
CONTINUATION OF SIGNATURES FOR
IBM PROCEEDS AGREEMENT
dated __________, 1999
TRANSPAC INDUSTRIAL HOLDINGS LTD REGIONAL INVESTMENT COMPANY LTD
By:____________________________ By:___________________________
Signature Signature
Print Print
Name:__________________________ Name:_________________________
Print Print
Title:_________________________ Title:________________________
NATSTEEL EQUITY III PTE LTD
By:___________________________
Signature
Print
Name:_________________________
Print
Title:________________________
5