EXHIBIT 4.45
EXECUTION COPY
CHIPPAC, INC., as Company
STATS CHIPPAC LTD., as Parent
and
U.S. BANK NATIONAL ASSOCIATION, as Trustee
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SECOND SUPPLEMENTAL INDENTURE
TO THE INDENTURE DATED AS OF MAY 28, 2003
Dated as of October 11, 2004
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2.50% Convertible Subordinated Notes Due 2008
SECOND SUPPLEMENTAL INDENTURE (this "Second Supplemental
Indenture"), dated as of October 11, 2004, between ChipPAC, Inc., a corporation
duly organized and existing under the laws of the State of Delaware (the
"Company"), STATS ChipPAC Ltd., a Singapore public company limited by shares
(the "Parent") and U.S. Bank National Association, a banking association duly
organized and existing under the laws of the United States of America, as
trustee (the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee have heretofore executed
an Indenture, dated as of May 28, 2003 (the "Base Indenture"), as amended and
supplemented by a First Supplemental Indenture dated as of August 4, 2004 (as
amended hereby, the "Indenture"), pursuant to which the Company issued
$150,000,000 aggregate principal amount of 2.50% Convertible Subordinated Notes
due 2008 (the "Securities");
WHEREAS, in accordance with Section 10.01 of the Base
Indenture, the Company and the Trustee may amend the Base Indenture without
notice to or consent of any Securityholder to, among other things, add
guarantees with respect to the Securities;
WHEREAS, the Company and the Trustee are entering into this
Second Supplemental Indenture to provide for a guarantee of the Securities by
Parent on a subordinated basis; and
WHEREAS, all conditions and requirements necessary to make
this Second Supplemental Indenture a valid, binding and legal instrument in
accordance with the terms of the Indenture have been performed and fulfilled and
the execution and delivery hereof by the Company and Parent have been in all
respects duly authorized.
NOW, THEREFORE, for and in consideration of the above
premises, it is hereby covenanted and agreed, for the equal and proportionate
benefit of the Holders of the Securities, as follows:
ARTICLE 1
RELATION TO INDENTURE, DEFINITIONS
Section 1.01 Relation to Indenture. This Second Supplemental
Indenture constitutes an integral part of the Indenture. In the event of
inconsistencies between the Indenture and this Second Supplemental Indenture,
the terms of this Second Supplemental Indenture shall govern.
Section 1.02 Definitions. For all purposes of this Second
Supplemental Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) capitalized terms used herein without definition have
the meanings specified in the Indenture;
(b) all other terms used herein without definition which are
defined in the TIA, either directly or by reference therein, have the meanings
assigned to them therein; and
(c) unless the context otherwise requires, any reference to
an "Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Second Supplemental Indenture.
Section 1.03 Amendment to Definitions in Indenture. The
following definitions are hereby added to Section 1.01 of the Indenture in its
alphabetical location:
"PARENT DESIGNATED SENIOR INDEBTEDNESS" means any Parent
Senior Indebtedness that, at the date of determination, has an aggregate
principal amount outstanding of, or under which, at the date of determination,
the holders thereof are committed to lend up to, at least $10.0 million and is
specifically designated in the instrument evidencing or governing such Senior
Indebtedness as "Parent Designated Senior Indebtedness" for purposes of this
Indenture.
"PARENT SENIOR INDEBTEDNESS" means all (1) Bank Indebtedness
of or Guaranteed by Parent, whether outstanding on the date hereof or hereafter
Incurred, and (2) Indebtedness of Parent, whether outstanding on the date hereof
or hereafter Incurred, including interest thereon, in respect of (A)
Indebtedness for money borrowed, (B) Indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of which Parent
is responsible or liable and (C) Hedging Obligations, unless, in the case of (1)
and (2), in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such Obligations are subordinate in
right of payment to the Obligations of Parent under the Securities; provided,
however, that Parent Senior Indebtedness shall not include (i) any Obligation of
Parent to any Subsidiary of Parent, (ii) any liability for Federal, state, local
or other taxes owed or owing by Parent, (iii) any accounts payable or other
liability to trade creditors arising in the ordinary course of business
(including guarantees thereof or instruments evidencing such liabilities), or
(iv) that portion of any Indebtedness which at the time of Incurrence is
Incurred in violation of the Indenture.
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ARTICLE 2
AMENDMENT TO FORM OF SECURITY
Section 2.01 Form of Security. Exhibit A of the Indenture is
replaced in its entirety in the form attached to this Second Supplemental
Indenture. Upon the execution of this Second Supplemental Indenture, the Company
shall execute and the Trustee shall authenticate and deliver, Securities in the
form set forth in Exhibit A, in substitution for, Securities then outstanding
and all Securities presented or delivered to the Trustee on and after the date
hereof shall be in the form of Exhibit A attached hereto to give effect to this
Second Supplemental Indenture.
The Trustee shall not at any time be under any responsibility
to acquire or cause any Security now or hereafter outstanding to be presented or
delivered to it for any purposes provided for in this Section 2.01.
ARTICLE 3
PARENT GUARANTEE
Section 3.01 Parent Guarantee. Subject to the provisions of
this Article 3, Parent fully and unconditionally Guarantees, on a subordinated
basis as set forth more fully in Article 4, to each Holder of Securities
hereunder and to the Trustee on behalf of the Holders: (1) the due and punctual
payment of the principal of, premium, if any, and interest on each Security,
when and as the same shall become due and payable, whether at maturity, by
acceleration or otherwise, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee, all in accordance with
the terms of the Security and the Indenture and (2) in the case of any extension
of time of payment or renewal of any Securities or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, at Stated Maturity, by
acceleration or otherwise, subject, however, in the case of clauses (1) and (2)
above, to the limitations set forth in the next succeeding paragraph (the
"Parent Guarantee").
Parent by its acceptance hereof and each Holder hereby
confirms that it is the intention of all such parties that the Parent Guarantee
pursuant to this Section 3.01 not constitute a fraudulent transfer or conveyance
for purposes of the United States Bankruptcy Code, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or
state law. To effectuate the foregoing intention, the Holders and Parent hereby
irrevocably agree that the obligations of Parent under the Parent Guarantee
shall be limited to the maximum amount as will, after giving effect to all other
contingent and fixed, liabilities of Parent, result in the obligations of Parent
under the Parent Guarantee not constituting such fraudulent transfer or
conveyance.
Parent hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy of
the Company, any right to require a proceeding first against the Company, the
benefit of discussion, protest or notice with respect to
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any such Security or the debt evidenced thereby and all demands whatsoever
(except as specified above), and covenants that the Parent Guarantee will not be
discharged as to any such Security except by payment in full of the principal
thereof and interest thereon or as provided in Section 9.01 of the Indenture. In
the event of any declaration of acceleration of such obligations as provided in
Article 7 of the Indenture, such obligations (whether or not due and payable)
shall forthwith become due and payable by Parent for the purposes of this
Article 3. In addition, without limiting the foregoing provisions, upon the
effectiveness of an acceleration under Article 7 of the Indenture, the Trustee
shall promptly make a demand for payment on the Securities under the Parent
Guarantee provided for in this Article 3.
If the Trustee or the Holder is required by any court or
otherwise to return to the Company or Parent, or any custodian, receiver,
liquidator, trustee, sequestrator or other similar official acting in relation
to Company or Parent, any amount paid to the Trustee or such Holder in respect
of a Security, the Parent Guarantee, to the extent theretofore discharged, shall
be reinstated in full force and effect. Parent further agrees, to the fullest
extent that it may lawfully do so, that, as between it, on the one hand, and the
Holders and the Trustee, on the other hand, the maturity of the obligations
Guaranteed hereby may be accelerated as provided in Article 7 of the Indenture
for the purposes of the Parent Guarantee, notwithstanding any stay, injunction
or other prohibition extant under any applicable bankruptcy law preventing such
acceleration in respect of the obligations Guaranteed hereby.
Parent shall be subrogated to all rights of the Holders of any
Security against the Company in respect to any amounts paid by Parent to such
Holder pursuant to the provisions of the Parent Guarantee; provided, that Parent
shall not be entitled to enforce, or to receive any payments arising out of or
based upon, such right of subrogation until the principal of, premium, if any,
and interest on all the Securities shall have been paid in full.
Section 3.02 Release of Parent Guarantee. The Parent Guarantee
will be automatically and unconditionally released and discharged upon (1) any
sale, exchange or transfer (including by way of merger or consolidation) to any
Person not an Affiliate of Parent of all of the Company's Capital Stock, or all
or substantially all the assets of the Company (where such sale, exchange or
transfer is not prohibited by the Indenture); (2) the satisfaction and discharge
of the Securities pursuant to Section 9.01 of the Indenture; (3) any sale,
exchange or transfer of all or substantially all of the assets of Parent (where
such sale, exchange or transfer is not prohibited by the Indenture); or (4) any
consolidation, combination or merger of Parent with or into any other Person in
a transaction that is not prohibited by the Indenture and in which Parent is not
the surviving corporation. In each case of (1), (2), (3) or (4), upon delivery
of an Officers' Certificate of Parent and an Opinion of Counsel stating that all
conditions precedent herein provided for the release of Parent from its
obligations under the Parent Guarantee have been complied with, Parent shall be
released and discharged of its obligations under the Parent Guarantee and under
this Article 3 without any action on the part of the Trustee or any Holder, and
the Trustee shall execute any documents reasonably required in order to
acknowledge the release of Parent from its obligations under the Parent
Guarantee and under this Article 3.
Section 3.03 Notice to Trustee. Parent shall give prompt
written notice to the Trustee of any fact known to Parent that would prohibit
the making of any payment to or by the Trustee in respect of the Parent
Guarantee pursuant to the provisions of this Article 3.
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Section 3.04 This Article Not to Prevent Events of Default.
The failure to make a payment on account of principal of, premium, if any, or
interest on the Securities by reason of any provision of this Article 3 will not
be construed as preventing the occurrence of an Event of Default.
ARTICLE 4
SUBORDINATION OF PARENT GUARANTEE
Section 4.01 Agreement to Subordinate. Parent agrees, and each
Holder by accepting a Security agrees, that the Indebtedness evidenced by the
Parent Guarantee is subordinated in right of payment, to the extent and in the
manner provided in this Article 4, to the prior payment in full in cash of all
Obligations with respect to Parent Senior Indebtedness and that the
subordination is for the benefit of and enforceable by the holders of such
Parent Senior Indebtedness. All provisions of this Article 4 shall be subject to
Section 4.12.
Section 4.02 Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of Parent to creditors upon a total or
partial liquidation or a total or partial dissolution or winding up of Parent or
upon any assignment for the benefit of creditors or marshaling of assets of
Parent or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to Parent or its property, whether voluntary or involuntary:
(a) the holders of Parent Senior Indebtedness shall be
entitled to receive payment in full in cash of all obligations with respect to
such Senior Indebtedness (including all interest accruing subsequent to the
filing of a petition in bankruptcy at the rate provided for in the documentation
with respect thereto, whether or not such interest is an allowed claim under
applicable law) before Holders shall be entitled to receive any payment or
distribution with respect to the Securities; and
(b) until all Obligations with respect to the Parent Senior
Indebtedness are paid in full in cash, any payment or distribution to which
Holders would be entitled but for this Article 4 shall be made to holders of
such Senior Indebtedness as their interests may appear, except that Holders may
receive in exchange for the Securities in any proceeding of the type described
above in this Section 4.02, (x) equity securities of Parent which, in any case,
do not provide any mandatory redemption or similar retirement prior to the
maturity of the Securities or (y) unsecured debt securities of Parent that are
subordinated to at least the same extent as the Securities to the payment of all
Parent Senior Indebtedness and which, in any case, do not mature or become
subject to a mandatory redemption obligation prior to the maturity of the
Securities.
Section 4.03 Default on Parent Senior Indebtedness. Parent may
not pay (in cash, property or other assets) the principal, premium, if any, or
interest on the Securities or repurchase or otherwise retire any Securities
(collectively, "pay the Guarantee") if either of the following occurs (each, a
"Parent Payment Default") (1) any Obligations with respect to Parent Senior
Indebtedness are not paid in full when due or (2) any other default on Parent
Senior Indebtedness occurs and the maturity of such Parent Senior Indebtedness
is accelerated in accordance with its terms unless, in either case, (x) the
default has been cured or waived and any such acceleration has been rescinded in
writing or (y) such Parent Senior Indebtedness has been
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paid in full in cash; provided, however, that Parent may pay the Guarantee
without regard to the foregoing if Parent and the Trustee receive written notice
approving such payment from the Representative of such Parent Senior
Indebtedness.
During the continuance of any default (other than a default
described in clauses (1) or (2) of the preceding paragraph) with respect to any
Parent Designated Senior Indebtedness pursuant to which the maturity thereof may
be accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or upon the expiration of any applicable
grace periods, Parent may not pay the Guarantee for a period (a "Parent Payment
Blockage Period") commencing upon the receipt by Parent and the Trustee of
written notice (a "Parent Blockage Notice") of such default from the
Representative of such Parent Designated Senior Indebtedness specifying an
election to effect a Parent Payment Blockage Period and ending 179 days
thereafter (or earlier if such Parent Payment Blockage Period is terminated (1)
by written notice to the Trustee and Parent from the Person or Persons who gave
such Parent Blockage Notice, (2) because no defaults continue in existence which
would permit the acceleration of the maturities of any Parent Designated Senior
Indebtedness at such time or (3) because such Parent Designated Senior
Indebtedness has been repaid in full in cash).
Unless the holders of such Parent Designated Senior
Indebtedness or the Representative of such holders shall have accelerated the
maturity of such Parent Designated Senior Indebtedness, or any Parent Payment
Default otherwise exists, Parent may resume payments on the Securities after
termination of such Parent Payment Blockage Period and may make any and all
payments that were previously subject to a Parent Payment Blockage Period. The
Securities shall not be subject to more than one Parent Payment Blockage Period
in any consecutive 360-day period. For purposes of this Section, no default or
event of default which existed or was continuing on the date of the commencement
of any Parent Payment Blockage Period with respect to the Parent Designated
Senior Indebtedness initiating such Parent Payment Blockage Period shall be, or
be made, the basis of the commencement of a subsequent Parent Payment Blockage
Period by the Representative of such Parent Designated Senior Indebtedness,
whether or not within a period of 360 consecutive days, unless such default or
event of default shall have been cured or waived for a period of not less than
90 consecutive days (it being acknowledged and agreed that (x) any default or
event of default as a result of a continued failure to meet a financial covenant
or test for a period ended subsequent to the commencement of a Parent Payment
Blockage Period shall constitute a new default or event of default, as the case
may be, and shall be deemed not to be a continuing default or event of default,
as the case may be, for purposes of this sentence and (y) any subsequent action
which would give rise to a default or an event of default pursuant to any
provision under which a default or event of default previously existed or was
continuing shall constitute a new default or event of default, as the case may
be, for this purpose and shall be deemed not to be a continuing default or event
of default, as the case may be, for purposes of this sentence).
Section 4.04 Acceleration of Payment of Securities. If payment
of the Securities is accelerated because of an Event of Default, Parent or the
Trustee shall promptly notify the holders of the Parent Senior Indebtedness (or
their Representatives) of the acceleration. If any Parent Senior Indebtedness is
outstanding at the time of such acceleration, Parent may not pay the Guarantee
until ten Business Days after the Representatives of all the issues of Parent
Senior
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Indebtedness receive notice of such acceleration and, thereafter, may pay the
Guarantee only if the Indenture otherwise permits payment at that time.
Section 4.05 When Distribution Must Be Paid Over. If a
distribution is made to Holders that because of this Article 4 should not have
been made to them, the Holders who receive the distribution shall hold it in
trust for holders of Parent Senior Indebtedness and pay it over to them as their
interests may appear.
Section 4.06 Subrogation. After all Parent Senior Indebtedness
is paid in full in cash and until the Securities are paid in full, Holders shall
be subrogated to the rights of holders of such Senior Indebtedness to receive
distributions applicable to such Senior Indebtedness. A distribution made under
this Article 4 to holders of such Senior Indebtedness which otherwise would have
been made to Holders is not, as between Parent and Holders, a payment by Parent
on the Securities.
Section 4.07 Relative Rights. This Article 4 defines the
relative rights of Holders and holders of Parent Senior Indebtedness. Nothing in
this Indenture shall:
(a) impair, as between Parent and Holders, the obligation of
Parent, which is absolute and unconditional, to pay the Guarantee in accordance
with the terms of Article 3 hereof; or
(b) prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders of Parent
Senior Indebtedness, to receive distributions otherwise payable to Holders.
Section 4.08 Subordination May Not Be Impaired by Parent. No
right of any holder of Parent Senior Indebtedness to enforce the subordination
of the Indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by Parent or by its failure to comply with this Second
Supplemental Indenture.
Section 4.09 Rights of Trustee and Paying Agent.
Notwithstanding Section 4.03, the Trustee or Paying Agent may continue to make
payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article 4. Parent, the Registrar or co-registrar, the Paying
Agent, a Representative or a holder of Senior Indebtedness may give the notice.
The Trustee in its individual or any other capacity may hold
Parent Senior Indebtedness with the same rights it would have if it were not
Trustee. The Registrar and co-registrar and the Paying Agent may do the same
with like rights. The Trustee shall be entitled to all the rights set forth in
this Article 4 with respect to any Parent Senior Indebtedness which may at any
time be held by it, to the same extent as any other holder of such Senior
Indebtedness; and nothing in Article 8 of the Indenture shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article 4 shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
8.07 of the Indenture.
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Section 4.10 Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Parent
Senior Indebtedness, the distribution may be made and the notice given to their
Representative (if any).
Section 4.11 Article 4 Not To Prevent Events of Default or
Limit Right To Accelerate. The failure to make a payment pursuant to the
Securities by reason of any provision in this Article 4 shall not be construed
as preventing the occurrence of a Default. Nothing in this Article 4 shall have
any effect on the right of the Holders or the Trustee to accelerate the maturity
of the Securities.
Section 4.12 Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article 4, the Trustee and the Holders shall be
entitled to rely (1) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 4.02
are pending, (2) upon a certificate of the liquidating trustee or agent or other
Person making such payment or distribution to the Trustee or to the Holders or
(3) upon the Representatives for the holders of Parent Senior Indebtedness for
the purpose of ascertaining the Persons entitled to participate in such payment
or distribution, the holders of such Senior Indebtedness and other Indebtedness
of Parent, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 4.
In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Parent Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article 4, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Parent Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and other facts pertinent to the
rights of such Person under this Article 4, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment. The
provisions of Sections 8.01 and 8.02 shall be applicable to all actions or
omissions of actions by the Trustee pursuant to this Article 4.
Section 4.13 Trustee To Effectuate Subordination. Each Holder
by accepting a Security authorizes and directs the Trustee on its behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Holders and the holders of Parent Senior Indebtedness
as provided in this Article 4 and appoints the Trustee as attorney-in-fact for
any and all such purposes.
Section 4.14 Trustee Not Fiduciary for Holders of Parent
Senior Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Parent Senior Indebtedness and shall not be liable to any such
holders if it shall mistakenly pay over or distribute to Holders or Parent or
any other Person, money or assets to which any holders of Parent Senior
Indebtedness shall be entitled by virtue of this Article 4 or otherwise.
Section 4.15 Reliance by Holders of Parent Senior Indebtedness
on Subordination Provisions. Each Holder by accepting a Security acknowledges
and agrees that the foregoing subordination provisions are, and are intended to
be, an inducement and a consideration to each holder of any Parent Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Securities, to acquire and
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continue to hold, or to continue to hold, such Senior Indebtedness and such
holder of such Senior Indebtedness shall be deemed conclusively to have relied
on such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Indebtedness.
ARTICLE 5
SUCCESSOR GUARANTORS
Article 6 of the Base Indenture is amended by inserting the
following new Section 6.02:
"Section 6.02 When Parent May Merge or Transfer Assets.
Nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of Parent into the Company where the Company is the
surviving entity or shall prevent any sale or conveyance of the property of
Parent as an entirety or substantially as an entirety, to the Company, provided,
that, such merger, consolidation, sale or conveyance is permitted under or
otherwise complies with the terms and conditions of the Indenture. Upon any such
consolidation, merger, sale or conveyance, the Parent Guarantee shall no longer
have any force or effect.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of Parent with or into a
corporation or corporations other than the Company (whether or not affiliated
with Parent), or successive consolidations or mergers in which Parent or its
successor or successors shall be a party or parties, or shall prevent any sale
or conveyance of the property of Parent as an entirety or substantially as an
entirety, to a corporation other than Company (whether or not affiliated with
Parent) authorized to acquire and operate the same; provided, that, such merger,
consolidation, sale or conveyance is permitted under or otherwise complies with
Article 4 and Section 5.11 of the Indenture and provided, further, that Parent
hereby covenants and agrees, that, except as provided in Section 6.01(a), upon
any such consolidation, merger, sale or conveyance, the Parent Guarantee
endorsed on the Securities, and the due and punctual performance and observance
of all of the covenants and conditions of this Indenture to be performed by
Parent, shall be expressly assumed (in the event that Parent is not the
surviving corporation in the merger), by supplemental indenture satisfactory in
form to the Trustee, executed and delivered to the Trustee, by the corporation
formed by such consolidation, or into which Parent shall have been merged, or by
the corporation which shall have acquired such property. In case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the Parent Guarantee
endorsed upon the Securities and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by Parent, such
successor corporation shall succeed to and be substituted for Parent, with the
same effect as if it had been named herein as a guarantor. Such successor
corporation thereupon may cause to be signed the Parent Guarantee to be endorsed
upon all of the Securities issuable hereunder which theretofore shall not have
been signed by the Company and delivered to the Trustee."
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ARTICLE 6
MISCELLANEOUS
Section 6.01 Notices. Any request, demand, authorization,
notice, waiver, consent or communication shall be in writing and delivered in
person or mailed by first-class mail, postage prepaid, addressed as follows or
transmitted by facsimile transmission (confirmed by guaranteed overnight
courier) to the following facsimile numbers:
if to the Company:
ChipPAC, Inc.
47400 Kato Road
Fremont, CA 94538
Facsimile No.: (510) 979-8000
Attention: Chief Financial Officer
if to Parent:
STATS ChipPAC Ltd.
10 Ang Mo Kio Street 65
#05-17/20 Techpoint
Singapore 569059
Facsimile No.: (65) 6824-7629
Attention: Chief Financial Officer
if to the Trustee:
U.S. Bank National Association
60 Livingston Avenue
St.Paul, MN 55107-2292
Facsimile No.: (651) 495-8097
Attention: Corporate Trust Department
The Company, Parent or the Trustee by notice given to the
other in the manner provided above may designate additional or different
addresses for subsequent notices or communications.
Any notice or communication given to a Holder of the
Securities shall be mailed to the Holder of the Securities, by first-class mail,
postage prepaid, at the Holder's address as it appears on the registration books
of the Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Holder of the
Securities or any defect in it shall not affect its sufficiency with respect to
other Holders of the Securities. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not received by the
addressee.
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If the Company mails a notice or communication to the Holders
of the Securities, it shall mail a copy to the Trustee and each Registrar,
Paying Agent, Conversion Agent or co-registrar.
Section 6.02 Separability Clause. In case any provision in
this Second Supplemental Indenture shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 6.03 Confirmation; Effectiveness. As amended by this
Second Supplemental Indenture, the Indenture and the Securities are ratified and
confirmed in all respects and the Indenture as so amended shall be read, taken
and construed as one and the same instrument. The provisions of this Second
Supplemental Indenture shall become operative as of the date of this Second
Supplemental Indenture.
Section 6.04 GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE
AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
Section 6.05 No Recourse Against Others. A director, officer,
employee or stockholder, or shareholder, as such, of the Company or Parent shall
not have any liability for any obligations of the Company under the Securities,
the Indenture or this Second Supplemental Indenture or for any claim based on,
in respect of or by reason of such obligations or their creation. By accepting a
Security, each Holder shall waive and release all such liability. This waiver
and release shall be part of the consideration for the execution of this
Indenture.
Section 6.06 Successors. All agreements of the Company and
Parent in this Second Supplemental Indenture, the Indenture and the Securities
shall bind their successors. All agreements of the Trustee in this Second
Supplemental Indenture, the Indenture and the Securities shall bind its
successors.
Section 6.07 Multiple Originals. The parties may sign any
number of copies of this Second Supplemental Indenture. Each signed copy shall
be an original, but all of them together represent the same agreement. One
signed copy is enough to prove this Second Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be executed by their duly authorized officers as of
the date first above written.
CHIPPAC, INC.
By: /s/ Michael G. Potter
------------------------------------
Michael G. Potter
Vice President and Treasurer
STATS CHIPPAC LTD.
By: /s/ Tan Lay Koon
------------------------------------
Tan Lay Koon
President and CEO
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Richard Prokosch
------------------------------------
Richard Prokosch
Vice President
EXHIBIT A
[FORM OF FACE OF SECURITY]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS SECURITY
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.](1)
[THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY AND THE STATS CHIPPAC
LTD. ORDINARY SHARES REPRESENTED BY AMERICAN DEPOSITARY SHARES ("ADSS") ISSUABLE
UPON CONVERSION THEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.](2)
[THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF
CHIPPAC, INC. THAT (A) THIS SECURITY AND THE ADSS ISSUABLE UPON
- ----------
(1) These paragraphs should be included only if the Security is a Global
Security.
(2) These paragraphs to be included only if the Security is Transfer
Restricted Security.
A-1
CONVERSION THEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (I) THROUGH (IV), IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE. IN ANY CASE, THE HOLDER HEREOF WILL NOT,
DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THIS
SECURITY EXCEPT AS PERMITTED UNDER THE SECURITIES ACT.](2)
THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A
REGISTRATION RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY
AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.
THIS SECURITY MAY NOT BE SOLD OR TRANSFERRED TO, AND EACH
PURCHASER BY ITS PURCHASE OF THIS SECURITY SHALL BE DEEMED TO HAVE REPRESENTED
AND COVENANTED THAT IT IS NOT ACQUIRING THIS SECURITY FOR OR ON BEHALF OF, AND
WILL NOT TRANSFER THIS SECURITY TO, ANY EMPLOYEE BENEFIT PLAN (A "PLAN") AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), EXCEPT THAT SUCH PURCHASE FOR OR ON BEHALF OF A PLAN SHALL
BE PERMITTED:
1. TO THE EXTENT SUCH PURCHASE IS MADE BY OR ON BEHALF OF A
BANK COLLECTIVE INVESTMENT FUND MAINTAINED BY THE PURCHASER IN WHICH NO PLAN
(TOGETHER WITH ANY OTHER PLANS MAINTAINED BY THE SAME EMPLOYER OR EMPLOYEE
ORGANIZATION) HAS AN INTEREST IN EXCESS OF 10% OF THE TOTAL ASSETS IN SUCH
COLLECTIVE INVESTMENT FUND, AND THE OTHER APPLICABLE CONDITIONS OF PROHIBITED
TRANSACTION CLASS EXEMPTION 91-38 ISSUED BY THE DEPARTMENT OF LABOR ARE
SATISFIED;
2. TO THE EXTENT SUCH PURCHASE IS MADE BY OR ON BEHALF OF
AN INSURANCE COMPANY POOLED SEPARATE ACCOUNT MAINTAINED BY THE PURCHASER IN
WHICH, AT ANY TIME WHILE THESE SECURITIES ARE OUTSTANDING, NO PLAN (TOGETHER
WITH ANY OTHER
A-2
PLANS MAINTAINED BY THE SAME EMPLOYER OR EMPLOYEE ORGANIZATION) HAS AN INTEREST
IN EXCESS OF 10% OF THE TOTAL OF ALL ASSETS IN SUCH POOLED SEPARATE ACCOUNT, AND
THE OTHER APPLICABLE CONDITIONS OF PROHIBITED TRANSACTION CLASS EXEMPTION 90-1
ISSUED BY THE DEPARTMENT OF LABOR ARE SATISFIED;
3. TO THE EXTENT SUCH PURCHASE IS MADE ON BEHALF OF A PLAN
BY A QUALIFIED PROFESSIONAL ASSET MANAGER ("QPAM"), AS SUCH TERM IS USED IN
PROHIBITED TRANSACTION CLASS EXEMPTION 84-14 (AS IT MAY BE AMENDED FROM TIME TO
TIME) ISSUED BY THE DEPARTMENT OF LABOR, AND THE ASSETS OF SUCH PLAN WHEN
COMBINED WITH THE ASSETS OF OTHER PLANS ESTABLISHED OR MAINTAINED BY THE SAME
EMPLOYER (OR AFFILIATE THEREOF) OR EMPLOYEE ORGANIZATION AND MANAGED BY SUCH
QPAM, DO NOT REPRESENT MORE THAN 20% OF THE TOTAL CLIENT ASSETS MANAGED BY SUCH
QPAM AT THE TIME OF THE TRANSACTION, AND THE OTHER APPLICABLE CONDITIONS OF SUCH
EXEMPTION ARE OTHERWISE SATISFIED;
4. TO THE EXTENT SUCH PLAN IS A GOVERNMENTAL PLAN, AS
DEFINED IN SECTION 3(32) OF ERISA WHICH IS NOT SUBJECT TO THE PROVISIONS OF
TITLE 1 OF ERISA, AND AS DEFINED IN SECTION 414(D) OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE");
5. TO THE EXTENT SUCH PURCHASE IS MADE BY OR ON BEHALF OF
AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT, THE RESERVES AND
LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY PLAN,
TOGETHER WITH ANY OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR ITS
AFFILIATES) OR EMPLOYEE ORGANIZATION, DO NOT EXCEED 10% OF THE TOTAL RESERVES
AND LIABILITIES OF THE INSURANCE COMPANY GENERAL ACCOUNT (EXCLUSIVE OF SEPARATE
ACCOUNT LIABILITIES), PLUS SURPLUS AS SET FORTH IN THE NATIONAL ASSOCIATION OF
INSURANCE COMMISSIONERS ANNUAL STATEMENT FILED WITH THE STATE OF DOMICILE OF THE
INSURER, IN ACCORDANCE WITH PROHIBITED TRANSACTION CLASS EXEMPTION 95-60, AND
THE OTHER APPLICABLE CONDITIONS OF SUCH EXEMPTION ARE OTHERWISE SATISFIED;
6. TO THE EXTENT PURCHASE IS MADE BY AN IN-HOUSE ASSET
MANAGER WITHIN THE MEANING OF PART IV(A) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 96-23, SUCH MANAGER HAS MADE OR PROPERLY AUTHORIZED THE DECISION FOR
SUCH PLAN TO PURCHASE THIS SECURITY, UNDER CIRCUMSTANCES SUCH THAT PROHIBITED
TRANSACTION CLASS EXEMPTION 96-23 IS APPLICABLE TO THE PURCHASE AND HOLDING OF
THIS SECURITY; OR
7. TO THE EXTENT SUCH PURCHASE WILL NOT OTHERWISE GIVE RISE TO
A TRANSACTION DESCRIBED IN SECTION 406 OR SECTION
A-3
4975(C)(1) OF THE CODE FOR WHICH A STATUTORY OR ADMINISTRATIVE EXEMPTION IS
UNAVAILABLE.
A-4
CHIPPAC, INC.
CUSIP No. [*]
No. 1
ISIN No. [*]
2.50% CONVERTIBLE SUBORDINATED NOTE DUE 2008
ChipPAC, Inc., a Delaware corporation (the "COMPANY", which
term shall include any successor corporation under the Indenture referred to on
the reverse hereof), promises to pay to Cede & Co., or registered assigns, the
principal sum of 150,000,000 Dollars on June 1, 2008 [or such greater or lesser
amount as is indicated on the Schedule of Exchanges of Securities on the other
side of this Security].(3)
Interest Payment Dates: June 1 and December 1, beginning
December 1, 2003
Record Dates: May 15 and November 15
This Security is convertible as specified on the other side of
this Security. Additional provisions of this Security are set forth on the other
side of this Security.
[Signatures on Following Pages]
- ----------
(3) This phrase should be included only if the Security is a Global Security
A-5
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
CHIPPAC, INC.
By:_________________________________
Tan Lay Koon
President and Chief Executive Officer
Trustee's Certificate of Authentication: This is one
of the Securities referred to in the within-mentioned
Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee,
_______________________________
Authorized Signatory
By: Richard Prokosch
A-6
[FORM OF REVERSE SIDE OF SECURITY]
CHIPPAC, INC.
2.50% CONVERTIBLE SUBORDINATED NOTE DUE JUNE 1, 2008
1. Interest
ChipPAC, Inc., a Delaware corporation (the "COMPANY" which
term shall include any successor corporation under the Indenture hereinafter
referred to), promises to pay interest on the principal amount of this Security
at the rate of 2.50% per annum. The Company shall pay interest semiannually on
June 1 and December 1 of each year, commencing December 1, 2003; provided,
however, that such interest may be increased by any Additional Interest accruing
from time to time on the principal amount of this Security as provided in the
Registration Rights Agreement. Any reference herein to interest accrued or
payable as of any date shall include any Additional Interest accrued or payable
on such date as provided in the Registration Rights Agreement. Interest on the
Securities shall accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from May 28, 2003; provided, however,
that if there is not an existing Default in the payment of interest and if this
Security is authenticated between a record date referred to on the face hereof
and the next succeeding interest payment date, interest shall accrue from such
interest payment date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
2. Method of Payment
The Company shall pay interest on this Security (except
defaulted interest) to the person who is the Holder of this Security at the
close of business on May 15 or November 15, as the case may be, next preceding
the related interest payment date. The Holder must surrender this Security to a
Paying Agent to collect payment of principal. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company may, however, pay
principal and interest in respect of any Certificated Security by check or wire
payable in such money; provided, however, that a Holder with an aggregate
principal amount in excess of $2,000,000 will be paid by wire transfer in
immediately available funds at the election of such Holder. The Company may mail
an interest check to the Holder's registered address. Notwithstanding the
foregoing, so long as this Security is registered in the name of a Depositary or
its nominee, all payments hereon shall be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee.
3. Paying Agent, Registrar and Conversion Agent
Initially, U.S. Bank National Association (the "TRUSTEE",
which term shall include any successor trustee under the Indenture hereinafter
referred to) will act as Paying Agent, Registrar and Conversion Agent. The
Company may change any Paying Agent, Registrar or Conversion Agent without
notice to the Holder. The Company or any of its Subsidiaries may, subject to
certain limitations set forth in the Indenture, act as Paying Agent or
Registrar.
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4. Indenture, Limitations
This Security is one of a duly authorized issue of Securities of the
Company designated as its 2.50% Convertible Subordinated Notes Due 2008 (the
"SECURITIES") issued under an Indenture dated as of May 28, 2003 (together with
any supplemental indentures thereto, the "INDENTURE"), among the Company, STATS
ChipPAC Ltd. ("Parent") and the Trustee. Capitalized terms herein are used as
defined in the Indenture unless otherwise defined herein. The terms of this
Security include those stated in the Indenture and those required by or made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended, as in effect on the date of the Indenture. This Security is subject to
all such terms, and the Holder of this Security is referred to the Indenture and
said Act for a statement of them. The Securities are subordinated unsecured
obligations of the Company limited to $150,000,000 aggregate principal amount.
The Indenture does not limit other debt of the Company, secured or unsecured,
including Senior Indebtedness.
5. Purchase of Securities at Option of Holder Upon a Change of Control
At the option of the Holder and subject to the terms and conditions
of the Indenture, the Company shall become obligated to purchase all or any part
specified by the Holder (so long as the principal amount of such part is $1,000
or an integral multiple of $1,000 in excess thereof) of the Securities held by
such Holder on the date that is no less than 30 days and not more than 60 days
after notice of the occurrence of a Change of Control is given as provided in
Section 4.07, at a purchase price equal to 100% of the principal amount thereof
together with accrued interest up to, but excluding, the Change of Control
Purchase Date. The Holder shall have the right to withdraw any Change of Control
Purchase Notice (in whole or in a portion thereof that is $1,000 or an integral
multiple of $1,000 in excess thereof) at any time prior to the close of business
on the Business Day next preceding the Change of Control Purchase Date by
delivering a written notice of withdrawal to the Paying Agent in accordance with
the terms of the Indenture.
6. Conversion
A Holder of a Security may convert the principal amount of such
Security (or any portion thereof equal to $1,000 or any integral multiple of
$1,000 in excess thereof) into STATS ADSs at any time prior to the close of
business on the Business Day immediately preceding June 1, 2008; provided,
however, that if the Security is subject to purchase upon a Change of Control,
the conversion right will terminate at the close of business on the Business Day
immediately preceding the Change of Control Purchase Date for such Security or
such earlier date as the Holder presents such Security for purchase (unless the
Company shall default in making the Change of Control Purchase Price when due,
in which case the conversion right shall terminate at the close of business on
the date such default is cured and such Security is purchased). The initial
Conversion Price is $9.267 per share, subject to adjustment under certain
circumstances. The number of ADSs issuable upon conversion of a Security is
determined by dividing the principal amount of the Security or portion thereof
converted by the Conversion Price in effect on the Conversion Date. No
fractional ADS will be issued upon conversion; in lieu thereof, an amount will
be paid in cash based upon the closing price (as defined in the Indenture) of
the ADS on the Trading Day immediately prior to the Conversion Date. To convert
a Security, a
A - 8
Holder must (a) complete and manually sign the conversion notice set forth below
and deliver such notice to a Conversion Agent, (b) surrender the Security to a
Conversion Agent, (c) furnish appropriate endorsements and transfer documents if
required by a Registrar or a Conversion Agent, and (d) pay any transfer or
similar tax, if required. Securities so surrendered for conversion (in whole or
in part) during the period from the close of business on any regular record date
to the opening of business on the next succeeding interest payment date
(excluding Securities or portions thereof which are subject to purchase
following a Change of Control on a date during the period beginning at the close
of business on a regular record date and ending at the opening of business on
the first Business Day after the next succeeding interest payment date, or if
such interest payment date is not a Business Day, the second such Business Day)
shall also be accompanied by payment in funds acceptable to the Company of an
amount equal to the interest payable on such interest payment date on the
principal amount of such Security then being converted, and such interest shall
be payable to such registered Holder notwithstanding the conversion of such
Security, subject to the provisions of this Indenture relating to the payment of
defaulted interest by the Company. If the Company defaults in the payment of
interest payable on such interest payment date, the Company shall promptly repay
such funds to such Holder. A Holder may convert a portion of a Security equal to
$1,000 or any integral multiple thereof. A Security in respect of which a Holder
had delivered a Change of Control Purchase Notice exercising the option of such
Holder to require the Company to purchase such Security may be converted only if
the Change of Control Purchase Notice is withdrawn in accordance with the terms
of the Indenture.
7. Subordination
The indebtedness evidenced by the Securities is, to the extent and
in the manner provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness of the Company.
Any Holder by accepting this Security agrees to and shall be bound by such
subordination provisions and authorizes the Trustee to give them effect. In
addition to all other rights of Senior Indebtedness described in the Indenture,
the Senior Indebtedness shall continue to be Senior Indebtedness and entitled to
the benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any terms of any instrument relating to the Senior
Indebtedness or any extension or renewal of the Senior Indebtedness.
8. Denominations, Transfer, Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes or other governmental
charges that may be imposed in relation thereto by law or permitted by the
Indenture.
9. Persons Deemed Owners
The Holder of a Security may be treated as the owner of it for all
purposes.
A - 9
10. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent will pay the money back to the
Company at its written request. After that, Holders entitled to money must look
to the Company for payment.
11. Amendment, Supplement and Waiver
Subject to certain exceptions, the Indenture or the Securities may
be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the Securities then outstanding, and an existing
Default or Event of Default and its consequence or compliance with any provision
of the Indenture or the Securities may be waived in a particular instance with
the consent of the Holders of a majority in principal amount of the Securities
then outstanding. Without the consent of or notice to any Holder, the Company
and the Trustee may amend or supplement the Indenture or the Securities to,
among other things, cure any ambiguity, defect or inconsistency or make any
other change that does not adversely affect the rights of any Holder.
12. Successor Corporation
When a successor corporation assumes all the obligations of its
predecessor under the Securities and the Indenture in accordance with the terms
and conditions of the Indenture, the predecessor corporation will (except in
certain circumstances specified in the Indenture) be released from those
obligations.
13. Defaults and Remedies
Under the Indenture, an Event of Default includes: (1) the Company
defaults in any payment of interest on any Security when the same becomes due
and payable, whether or not such payment shall be prohibited by Article 11, and
such default continues for a period of 30 days; (2) the Company (i) defaults in
the payment of the principal of any Security when the same becomes due and
payable at its Stated Maturity, upon declaration of acceleration or otherwise,
whether or not such payment shall be prohibited by Article 11 or (ii) fails to
purchase Securities when required pursuant to this Indenture or the Securities,
whether or not such purchase shall be prohibited by Article 11; (3) the Company
fails to comply with its obligations with respect to a Change of Control in
accordance with Sections 4.07, 4.08, 4.09, 4.10 and 4.11 (other than its
obligation to purchase securities properly submitted for purchase); (4) the
Company fails to comply with its obligations under Section 6.01; (5) the Company
fails to comply with any of its agreements in the Securities or the Indenture
(other than those referred to in clauses (1) through (4) above) and such failure
continues for 60 days after the notice specified below; or (6) the Company or
Parent pursuant to or within the meaning of any Bankruptcy Law: (A) commences a
voluntary case; (B) consents to the entry of an order for relief against it in
an involuntary case; (C) consents to the appointment of a Custodian of it or for
a substantial part of its property; or (D) makes a general assignment for the
benefit of its creditors; (7) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that: (A) is for relief against the Company
or Parent in an involuntary case; (B) appoints a Custodian of the Company or
Parent or for all or substantially all of its property; or (C) orders the
winding up or liquidation of the
A-10
Company or Parent; and the order or decree remains unstayed and in effect for 60
days (together with Clause (6), the "bankruptcy provisions"); (8) Indebtedness
of the Company is not paid within 15 days of any applicable grace period after
final maturity or is accelerated by the holders thereof because of a default and
the total amount of such Indebtedness unpaid or accelerated exceeds $15.0
million (the "cross acceleration provision"); and (9) Default in the
performance, or breach, of any covenant of Parent contained in the Indenture and
the continuance of such default or breach for a period of 60 days after written
notice has been given to the Company and Parent by the Trustee or to Parent, the
Company and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding.
If an Event of Default (other than an event of default as described
in clauses (6) and (7) with respect to the Company) occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the Securities
then outstanding may declare all unpaid principal to the date of acceleration on
the Securities then outstanding to be due and payable immediately, all as and to
the extent provided in the Indenture. If an Event of Default occurs as a result
of certain events of bankruptcy, insolvency or reorganization of the Company or
as described in clauses (6) and (7) herein, unpaid principal of the Securities
then outstanding shall become due and payable immediately without any
declaration or other act on the part of the Trustee or any Holder, all as and to
the extent provided in the Indenture. Holders may not enforce the Indenture or
the Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, Holders of a majority in principal amount of the
Securities then outstanding may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders notice of any continuing Default
(except a Default in payment of principal or interest) if it determines that
withholding notice is in their interests. The Company is required to file
periodic reports with the Trustee as to the absence of Default.
14. Trustee Dealings with the Company
U.S. Bank National Association, the Trustee under the Indenture, in
its individual or any other capacity, may make loans to, accept deposits from
and perform services for the Company or an Affiliate of the Company, and may
otherwise deal with the Company or an Affiliate of the Company, as if it were
not the Trustee.
15. No Recourse Against Others
A director, officer, employee or shareholder, as such, of the
Company or Parent shall not have any liability for any obligations of the
Company or Parent under the Securities or the Indenture nor for any claim based
on, in respect of or by reason of such obligations or their creation. The Holder
of this Security by accepting this Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of this Security.
16. Parent Guarantee
This Security is entitled to the benefits of the Parent Guarantee
made for the benefit of the Holders. Reference is hereby made to the Indenture
for a statement of the respective rights, limitations of rights, duties and
obligations of Parent thereunder.
A-11
17. Authentication
This Security shall not be valid until the Trustee or an
authenticating agent manually signs the certificate of authentication on the
other side of this Security.
18. Abbreviations and Definitions
Customary abbreviations may be used in the name of the Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and UGMA (= Uniform Gifts to Minors Act).
All terms defined in the Indenture and used in this Security but not
specifically defined herein are defined in the Indenture and are used herein as
so defined.
19. Indenture to Control; Governing Law
In the case of any conflict between the provisions of this Security
and the Indenture, the provisions of the Indenture shall control. This Security
shall be governed by, and construed in accordance with, the laws of the State of
New York, without regard to principles of conflicts of law.
The Company will furnish to any Holder, upon written request and
without charge, a copy of the Indenture. Requests may be made to: ChipPAC, Inc.,
47400 Kato Road, Fremont, California 94538, Attention: Corporate Secretary.
A-12
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code
and irrevocably appoint
________________________________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him or her.
Your Signature
Date: ______________________ ________________________________________________
(Sign exactly as your name appears on the
other side of this Security)
*Signature guaranteed by:
By: ________________________
*Signature(s) must be guaranteed by a qualified guarantor institution with
membership in an approved signature guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended.
A-13
CHIPPAC, INC. (the "Company")
US$150,000,000
2.50% Convertible Subordinated Notes due 2008
(CUSIP No. [169657AC7]/[169657AD5])
CONVERSION NOTICE
PART I
To convert this security (the "Security") into STATS ChipPAC Ltd.
(the "Parent") Ordinary Shares represented by American Depositary Shares
("ADSs"), check this box: [ ]
To convert only part of this Security, state the principal amount to
be converted (must be $1,000 or a multiple of $1,000): $___________ .
PART II
A. IF YOU WISH TO RECEIVE ADSS UPON CONVERSION OF YOUR SECURITIES, CHECK AND
COMPLETE ITEMS 1., 2. OR 3. BELOW.
1. Check here [ ] and complete the grid below if you are requesting
conversion of your Securities for ADSs AND the ADSs have been sold to a
third party pursuant to an effective registration statement under the
Securities Act:
Deliver ADSs (CUSIP No. 85771T104) to:
Name of DTC Participant: _______________________________
DTC Participant Account No.: _______________________________
Account No. for Purchaser at DTC _______________________________
Participant (f/b/o information): _______________________________
Onward Delivery instructions to
Purchaser: _______________________________
Contact person at DTC Participant: _______________________________
Daytime Telephone Number of
contact person at DTC Participant: _______________________________
By checking above and completing the above grid, I/we (i) represent that I/we
am/are not acting on behalf of Parent, the Company or any affiliate of either
Parent or the Company and that the ADSs to be delivered upon conversion of
my/our Securities have been sold pursuant to a resale registration statement
which has been declared effective under the Securities Act (and which
A-14
continues to be effective at the time of transfer), and (ii) certify that the
prospectus delivery requirements, if any, of the Securities Act have been
satisfied with respect to the sale described above and that the person who
signed this Conversion Notice is the beneficial owner of the Securities
surrendered herewith and is named as a selling securityholder in the applicable
Prospectus or in amendments or supplements thereto, and that the number of ADSs
transferred are all or a portion of the ADSs listed in such Prospectus, as
amended or supplemented opposite such owner's name. Details of my/our designee
to receive such ADSs are set forth above.
OR
2. Check here [ ] and complete the grid below if you are requesting
conversion of your Securities for ADSs AND you acquired your Securities in
a sale pursuant to an effective registration statement under the
Securities Act:
Deliver ADSs (CUSIP No. 85771T104) to:
Name of DTC Participant: _______________________________
DTC Participant Account No.: _______________________________
Account No. for Purchaser at DTC _______________________________
Participant (f/b/o information): _______________________________
Onward Delivery instructions to
Purchaser: _______________________________
Contact person at DTC Participant: _______________________________
Daytime Telephone Number of
contact person at DTC Participant: _______________________________
By checking above and completing the above grid, I/we (i) represent that I/we
am/are not acting on behalf of Parent, the Company or any affiliate of either
Parent or the Company and that I/we acquired my/our Securities in a sale
pursuant to a resale registration statement which has been declared effective
under the Securities Act (and which continues to be effective at the time of
transfer), and (ii) certify that the prospectus delivery requirements, if any,
of the Securities Act have been satisfied with respect to the acquisition
described above and that the person who signed this Conversion Notice is the
beneficial owner of the Securities surrendered herewith and the seller of such
Securities is named as a selling securityholder in the applicable Prospectus or
in amendments or supplements thereto, and that the number of ADSs transferred
are all or a portion of the ADSs listed in such Prospectus, as amended or
supplemented opposite such seller's name. Details of my/our designee to receive
such ADSs are set forth above.
OR
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3. Check here [ ] and complete the grid below if you are requesting
conversion of your Securities (without concurrent resale under a resale
registration statement) into Restricted ADSs:
Deliver Restricted ADR (CUSIP
No. 85227G888) to: _______________________________
Name of Holder: _______________________________
Address: _______________________________
Tax ID Number: _______________________________
Fax Number: _______________________________
Daytime Telephone No.: _______________________________
Federal Express Account No.:* _______________________________
* THE RESTRICTED ADR(S) WILL BE MAILED BY U.S. MAIL UNLESS A FEDERAL
EXPRESS ACCOUNT NUMBER IS INCLUDED ABOVE.
** UPON RECEIPT OF THIS CONVERSION NOTICE, THE CONVERSION AGENT WILL
COMPLETE THIS CONVERSION NOTICE AND WILL PROMPTLY, BUT IN ANY EVENT
NOT LATER THAN TWO BUSINESS DAYS FOLLOWING THE CONVERSION DATE, FAX
THE COMPLETED CONVERSION NOTICE TO THE ADS DEPOSITARY AND THE
CUSTODIAN AS SPECIFIED HEREIN.
By checking and completing the grid above, I/we (x) represent and agree that, at
the time of signing and delivery of this Conversion Notice, I/we am/are, or the
person who has the beneficial interest in such Securities is, not Parent, the
Company or an affiliate of either Parent or the Company and (i) is not a U.S.
Person (within the meaning of Regulation S under the Securities Act ("Regulation
S")) and I/we, or such person, purchased such Securities, or the beneficial
interest therein, in a transaction made in accordance with Regulation S, (ii) is
a "qualified institutional buyer" ("QIB") within the meaning of Rule 144A under
the Securities Act, or (iii) is an "accredited investor" within the meaning of
Regulation D under the Securities Act, (y) understand that ADSs issued upon
conversion of the Securities have not been and will not be registered under the
Securities Act, and (z) agrees that such ADSs will be issued in the form of
certificated Restricted ADR(s) and may not be offered, sold, pledged or
otherwise transferred except (A) (1) pursuant to Rule 144A under the Securities
Act to a person that the holder reasonably believes is a QIB within the meaning
of Rule 144A, (2) in an offshore transaction to a non-U.S. person made in
accordance with Regulation S, (3) pursuant to an effective registration
statement under the Securities Act, or (4) pursuant to an exemption from
registration under the Securities Act, and (B) in accordance with any applicable
securities laws of any state of the United States and the applicable laws of any
other jurisdiction. The undersigned understands that the Restricted ADSs are
subject to the terms of a Letter Agreement, dated as of October __, 2004, by and
between Parent and Citibank, N.A., as ADS Depositary, which sets forth the
restrictions applicable to the Restricted ADSs.
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Please read and complete Items B through E below:
B. The Securities converted hereby and any documents required in relation to
the declarations below or to verify the same accompany this form.
C. I/we hereby declare that I/we have been notified by Parent that Parent's
register of shareholders may be closed from time to time. I/We hereby
declare that any applicable condition to conversion of the Securities, if
any, has been complied with by me/us, that I/we am/are not acting on
behalf of Parent, the Company or an affiliate of either.
D. I/We hereby declare that all stamp, issue, registration or similar taxes
and duties payable on conversion of the Securities in the jurisdiction
where the Securities are delivered to the Conversion Agent have been paid.
E. Converting Securityholder Information and Signature:
Please complete the following information with respect to the converting
Securityholder:
Name:
Date:
Address: _______________________________
_______________________________
Telephone Number:
Signature: _______________________________
*SIGNATURE GUARANTEED BY:
BY: ___________________________
*Signature(s) must be guaranteed by a qualified guarantor institution with
membership in an approved signature guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended.
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For Conversion Agent's use only:
1. (A) Securities conversion identification reference: ChipPAC, Inc. 2.50%
Convertible Subordinated Notes due 2008 (CUSIP
[169657AC7]/[169657AD5])
(B) Deposit Date: ______________________________________________________
(C) Conversion Date: ___________________________________________________
2. (A) Aggregate principal amount of Securities deposited for conversion:
__________________
(B) Conversion Price on Conversion Date: _______________________________
(C) Number of ADSs deliverable: ________________________________________
(disregard fractions)
(D) Number of Restricted ADSs deliverable: _____________________________
(disregard fractions)
N.B. The Conversion Agent must complete items 1 and 2.
Upon receipt, a copy of this Conversion Notice shall be forwarded to:
a) Citibank, N.A.
ADR Department
15th Floor
111 Wall Street
New York, New York 10043
Attn: Rosanne Devonshire
Facsimile No: (212) 825-2029
b) Citibank, N.A. - Singapore
300 Tampines Avenue 5
#07-00 Tampines Junction
Singapore, 529653
Facsimile No.: 011-65-6426-8661
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ORDINARY SHARES WHICH WOULD
BE REPRESENTED BY A FRACTION OF ONE ADS SHALL NOT BE ISSUABLE BY THE COMPANY OR
DEPOSITED WITH THE CUSTODIAN OR THE ADS DEPOSITARY.
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OPTION TO ELECT REPURCHASE
UPON A CHANGE OF CONTROL
To: ChipPAC, Inc.
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from ChipPAC, Inc. (the "COMPANY") as to the
occurrence of a Change of Control, and requests and instructs the Company to
redeem the entire principal amount of this Security, or the portion thereof
(which is $1,000 or an integral multiple thereof) below designated, in
accordance with the terms of the Indenture referred to in this Security at the
Change of Control Purchase Price, together with accrued interest to, but
excluding, such date, to the registered Holder hereof.
Date: ______________________ ________________________________________________
Signature(s)
Signature(s) must be guaranteed by a qualified
guarantor institution with membership in an
approved signature guarantee program pursuant to
Rule 17Ad-15 under the Securities Exchange Act
of 1934, as amended.
________________________________________________
Signature Guaranty
Principal amount to be redeemed (in an integral multiple of $1,000, if less than
all):
- ----------
NOTICE: The signature to the foregoing Election must correspond to the
Name as written upon the face of this Security in every particular, without
alteration or any change whatsoever.
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SCHEDULE OF EXCHANGES OF SECURITIES(4)
The following exchanges, repurchases or conversions of a part of
this global Security have been made:
PRINCIPAL AMOUNT AMOUNT OF AMOUNT OF
OF THIS GLOBAL AUTHORIZED DECREASE IN INCREASE IN
SECURITY FOLLOWING SIGNATORY OF PRINCIPAL AMOUNT PRINCIPAL AMOUNT
DATE OF SUCH DECREASE (OR SECURITIES OF THIS GLOBAL OF THIS GLOBAL
EXCHANGE INCREASE) CUSTODIAN SECURITY SECURITY
- -------- ------------------ ------------ ---------------- ----------------
- ----------
(4) This schedule should be included only if the Security is a Global
Security.
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CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF TRANSFER RESTRICTED SECURITIES(5)
Re: 2.50% Convertible Subordinated Securities Due 2008 (the "SECURITIES") of
ChipPAC, Inc.
This certificate relates to $__________ principal amount of Securities
owned in (check applicable box)
[ ] book-entry or [ ] definitive form by [ ] (the "TRANSFEROR").
The Transferor has requested a Registrar or the Trustee to exchange or
register the transfer of such Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify that the Transferor is familiar with transfer
restrictions relating to the Securities as provided in Section 2.08 of the
Indenture dated as of May 28, 2003, between ChipPAC, Inc. and U.S. Bank National
Association (the "INDENTURE"), and the transfer of such Security is being made
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "SECURITIES ACT") (check applicable box) or the transfer
or exchange, as the case may be, of such Security does not require registration
under the Securities Act because (check applicable box):
[ ] Such Security is being transferred pursuant to an effective
registration statement under the Securities Act.
[ ] Such Security is being transferred to the Company.
[ ] Such Security is being transferred inside the United States to a
person the Transferor reasonably believes is a "qualified
institutional buyer" (as defined in Rule 144A or any successor
provision thereto ("RULE 144A") under the Securities Act) that is
purchasing for its own account or for the account of a "qualified
institutional buyer", in each case to whom notice has been given
that the transfer is being made in reliance on such Rule 144A, and
in each case in reliance on Rule 144A.
[ ] Such Security is being transferred outside the United States in an
offshore transaction within the meaning of Regulation S under the
Securities Act in compliance with Rule 904 under the Securities Act.
[ ] Such Security is being transferred pursuant to and in compliance
with an exemption from the registration requirements under the
Securities Act in accordance with Rule 144 (or any successor
thereto) ("RULE 144") under the Securities Act.
- ----------
(5) This certificate should only be included if this Security is a Transfer
Restricted Security.
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[ ] Such Security is being transferred pursuant to and in compliance
with an exemption from the registration requirements of the
Securities Act (other than an exemption referred to above) and as a
result of which such Security will, upon such transfer, cease to be
a "restricted security" within the meaning of Rule 144 under the
Securities Act.
The Transferor acknowledges and agrees that, if the transferee will hold
any such Securities in the form of beneficial interests in a Global Security
which is a "restricted security" within the meaning of Rule 144 under the
Securities Act, then such transfer can only be made pursuant to Rule 144A under
the Securities Act and such transferee must be a "qualified institutional buyer"
(as defined in Rule 144A).
Date: ______________________ ________________________________________________
(Insert Name of Transferor)
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GUARANTEE
The undersigned ("PARENT") hereby unconditionally guarantees, on a
subordinated basis, to the extent set forth in the Indenture dated May 28, 2003,
as amended by the First Supplemental Indenture dated as of August 4, 2004, and
the Second Supplemental Indenture dated as of October 11, 2004, by and among
ChipPAC, Inc., as issuer, Parent and U.S. Bank National Association, a banking
association, as Trustee (as amended, restated or supplemented from time to time,
the "INDENTURE"), and subject to the provisions of the Indenture, as
supplemented, (a) the due and punctual payment of the principal of, and premium,
if any, and interest on the Notes, when and as the same shall become due and
payable, whether at maturity, by acceleration or otherwise, the due and punctual
payment of interest on overdue principal of, and premium and, to the extent
permitted by law, interest, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee, all in accordance with
the terms set forth in Article Three of the Second Supplemental Indenture, and
(b) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that the same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise.
Parent agrees, and each Holder agrees, that the Indebtedness evidenced by
this guarantee is subordinated in right of payment, to the extent and in the
manner provided in Article Four of the Second Supplemental Indenture, to the
prior payment in full in cash of all Obligations with respect to Parent Senior
Indebtedness. The obligations of Parent to the Holders and to the Trustee
pursuant to this Guarantee and the Indenture, as supplemented, are expressly set
forth in Article Three and Article Four of the Second Supplemental Indenture and
reference is hereby made to the Indenture, as supplemented, for the precise
terms and limitations of this Guarantee.
Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Indenture.
[Signatures on Following Pages]
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IN WITNESS WHEREOF, the Parent has caused this Guarantee to be
signed by a duly authorized officer.
THE PARENT:
STATS CHIPPAC LTD.
By: /s/ Tan Lay Koon
--------------------------------------------
Tan Lay Koon
President and Chief Executive Officer
Dated: October 11, 2004
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