EXHIBIT 4.46
EXECUTION COPY
CHIPPAC, INC., as Company
STATS CHIPPAC LTD., as Parent
and
U.S. BANK NATIONAL ASSOCIATION, as Trustee
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THIRD SUPPLEMENTAL INDENTURE
TO THE INDENTURE DATED AS OF MAY 28, 2003
Dated as of November 2, 2004
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2.50% Convertible Subordinated Notes Due 2008
THIRD SUPPLEMENTAL INDENTURE (this "Third Supplemental Indenture"),
dated as of November 2, 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 executed an Indenture (the
"Base Indenture", as amended and supplemented by a First Supplemental Indenture
dated as of August 4, 2004 (the "First Supplemental Indenture") and as further
amended and supplemented by a Second Supplemental Indenture dated as of October
11, 2004 (the "Second Supplemental Indenture", and 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, pursuant to the Agreement and Plan of Merger and
Reorganization dated as of February 10, 2004 (the "Merger Agreement") by and
among the Company, Parent (f.k.a. ST Assembly Test Services Ltd) and Camelot
Merger, Inc., a Delaware corporation and a wholly owned subsidiary of Parent
("Acquisition Corp"), Acquisition Corp merged (the "Merger") with and into the
Company, with the Company continuing as the surviving corporation of the Merger,
and each share of the Company's Class A common stock, $0.01 par value per share
immediately prior to the effective time of the Merger converted into the right
to receive 0.87 American depositary shares of Parent ("ADSs"), each of which
represents the right to receive ten ordinary shares of Parent;
WHEREAS, pursuant to Section 5.11 of the Indenture and as a
condition precedent to the Merger, Parent entered into the First Supplemental
Indenture providing that the Securities be convertible into ADSs;
WHEREAS, Parent entered into the Second Supplemental Indenture
providing for a guarantee of the Securities on a subordinated basis;
WHEREAS, the Company and Parent desire to amend the Securities and
Exchange Commission reporting obligations of the Company under Section 4.02 of
the Indenture;
WHEREAS, pursuant to Section 10.02 of the Indenture, written consent
of the Holders of at least a majority in principal amount of the Securities then
outstanding have been obtained approving this Third Supplemental Indenture,
including without limitation the amendment of the Securities and Exchange
Commission reporting obligation of the Company under Section 4.02 of the
Indenture; and
WHEREAS, all conditions and requirements necessary to make this
Third 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 Third Supplemental
Indenture constitutes an integral part of the Indenture. In the event of
inconsistencies between the Base Indenture, the First Supplemental Indenture,
the Second Supplemental Indenture and this Third Supplemental Indenture, the
terms of this Third Supplemental Indenture shall govern.
Section 1.02 Definitions. For all purposes of this Third
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 Third Supplemental Indenture.
ARTICLE 2
AMENDMENT TO COVENANTS
Section 4.02 of Article 4 of the Indenture is hereby deleted and
replaced in its entirety as follows:
Section 4.02. "SEC Reports. Whether or not subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, Parent will file with
the SEC and provide the Trustee with such annual reports and such information,
documents and other reports as are specified in Sections 13 and 15(d) of the
Exchange Act and applicable to a foreign corporation subject to such sections,
at the times specified for such filings under such sections. Parent also shall
comply with the other provisions of TIA Section 314(a) as may be required under
the provisions of the TIA. Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's or Parent's compliance with any of their covenants hereunder (as to
which the Trustee is entitled to rely on an Officer's Certificate)."
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ARTICLE 3
MISCELLANEOUS
Section 3.01 Separability Clause. In case any provision in this
Third 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 3.02 Confirmation; Effectiveness. As amended by this Third
Supplemental Indenture, the Second Supplemental Indenture and the First
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 Third
Supplemental Indenture shall become operative as of the date of this Third
Supplemental Indenture.
Section 3.03 GOVERNING LAW. THIS THIRD SUPPLEMENTAL INDENTURE AND
THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
Section 3.04 Successors. All agreements of the Company and Parent in
this Third Supplemental Indenture, the Indenture and the Securities shall bind
their successors. All agreements of the Trustee in this Third Supplemental
Indenture, the Indenture and the Securities shall bind its successors.
Section 3.05 Multiple Originals. The parties may sign any number of
copies of this Third 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 Third Supplemental Indenture.
Section 3.06 Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this Third
Supplemental Indenture and the Indenture have been inserted for convenience of
reference only, are not intended to be considered a part hereof and shall not
modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be executed by their duly authorized officers as of
the date first above written.
CHIPPAC, INC.
By: /s/ Tan Lay Koon
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Name: Tan Lay Koon
Title: President and Chief Executive Officer
STATS CHIPPAC LTD.
By: /s/ Tan Lay Koon
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Name: Tan Lay Koon
Title: President and Chief Executive Officer
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Richard Prokosch
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Name: Richard Prokosch
Title: Vice President
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