-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PouLTsTPUQnoXWCo6M2ekLbVcqaeKwNW0smDMhZiWad4cS/e2rqLziYks5Up9YnH PPmw/AX35BAoIbsH+qIJGw== /in/edgar/work/20000804/0001012870-00-004147/0001012870-00-004147.txt : 20000921 0001012870-00-004147.hdr.sgml : 20000921 ACCESSION NUMBER: 0001012870-00-004147 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 20000804 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CHIPPAC INC CENTRAL INDEX KEY: 0001093779 STANDARD INDUSTRIAL CLASSIFICATION: [3674 ] IRS NUMBER: 770463048 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1/A SEC ACT: SEC FILE NUMBER: 333-39428 FILM NUMBER: 685857 BUSINESS ADDRESS: STREET 1: 3151 CORONADO DR CITY: SANTA CLARA STATE: CA ZIP: 95054 BUSINESS PHONE: 4084865900 MAIL ADDRESS: STREET 1: 3151 CORONADO DRIVE CITY: SANTA CLARA STATE: CA ZIP: 95054 S-1/A 1 0001.txt AMENDMENT #2 TO THE S-1 REGISTRATION STATEMENT As filed with the Securities and Exchange Commission on August 4, 2000 Registration No. 333-39428 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------- AMENDMENT No. 2 to FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------- CHIPPAC, INC. (Exact Name of Registrant as Specified in its Charter) ----------- Delaware 3674 77-0463-48 (State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer Incorporation or Organization) Classification Code Number) Identification Number)
3151 Coronado Drive Santa Clara, California 95054 Telephone: (408) 486-5900 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) ----------- Dennis P. McKenna President and Chief Executive Officer 3151 Coronado Drive Santa Clara, California 95054 Telephone: (408) 486-5900 (Name, address, including zip code, and telephone number, including area code, of agent for service) ----------- Copies to: Eva Herbst Davis, Esq. Stephen L. Burns, Esq. Kirkland & Ellis Cravath, Swaine & Moore 777 South Figueroa Street Worldwide Plaza Los Angeles, California 90017 825 Eighth Avenue Telephone: (213) 680-8400 New York, New York 10019-7475 Telephone: (212) 474-1000
----------- Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective. If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 (the "Securities Act"), check the following box. [_] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act Registration Statement number of the earlier effective Registration Statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act Registration Statement number of the earlier effective Registration Statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act Registration Statement number of the earlier effective Registration Statement for the same offering. [_] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [_] ----------- CALCULATION OF REGISTRATION FEE - --------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Aggregate Amount of Title of Each Class of Amount to be Offering Price Offering Registration Securities to be Registered Registered(1) Per Share Price(2) Fee(3) - --------------------------------------------------------------------------------------------------- Class A Common Stock, par value $0.01 per share...... 17,825,000 shares $22.00 $392,150,000 $103,528 - --------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------
(1) Includes 2,325,000 shares that the underwriters have the option to purchase from ChipPAC, Inc. to cover over-allotments, if any. (2) Estimated solely for the purpose of calculating the registration fee pursuant to paragraph (a) of Rule 457 of the Securities Act. (3) Fee was paid with the previous filings of the Registration Statement. ----------- The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until this Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine. - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- ------------ ---------------- Explanatory Note The purpose of this Pre-Effective Amendment No. 2 to the Registration Statement is solely to file exhibits to the Registration Statement, as set forth below in Item 16(a) of Part II. PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 13. Other Expenses of Issuance and Distribution. The following table sets forth the estimated expenses to be incurred in connection with the issuance and distribution of the securities being registered, other than underwriting discounts and commissions, to be paid by the Registrant. SEC registration fee........................................... $ 103,528 National Association of Securities Dealers, Inc. filing fee.... 30,500 Nasdaq National Market listing fee............................. 95,000 Printing and engraving fees.................................... 300,000 Legal fees and expenses........................................ 350,000 Accounting fees and expenses................................... 500,000 Blue Sky fees and expenses..................................... 1,000 Transfer agent and register fees............................... 7,000 Directors' and officers' insurance............................. 465,000 Miscellaneous.................................................. 7,972 ---------- Total........................................................ $1,860,000 ==========
- --------------------- * To be included by amendment Item 14. Indemnification of Directors and Officers. Registrant is incorporated under the laws of the State of Delaware. Section 145 ("Section 145") of the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (the "General Corporation Law"), inter alia, provides that a Delaware corporation may indemnify any persons who were, are or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was illegal. A Delaware corporation may indemnify any persons who are, were or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reasons of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees), actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation's best interests, provided that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer, director, employee or agent is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred. Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity, arising out of his status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145. II-1 Registrant's Certificate of Incorporation and By-laws provide for the indemnification of officers and directors to the fullest extent permitted by the General Corporation Law. Registrant maintains a policy of directors and officers liability insurance covering certain liabilities incurred by its directors and officers in connection with the performance of their duties. Item 15. Recent Sales of Unregistered Securities. The Registrant was incorporated in Delaware in 2000 in order to effect the reincorporation of ChipPAC, Inc., a California corporation ("ChipPAC California") through a merger of ChipPAC California into the Registrant. On June 13, 2000 the Registrant entered into an Agreement and Plan of Merger (the "Merger Agreement") with ChipPAC California. Pursuant to the Merger Agreement, which is filed as Exhibit 2.1 to the Registration Statement, the ChipPAC California will merge with and into the Registrant (the "Merger"), as a result of which ChipPAC California will cease to exist and the Registrant will operate business as ChipPAC, Inc. The Merger is to occur immediately prior to the effectiveness of this Registration Statement. Such transactions will be exempt from registration by virtue of Sections 3(a)(11) or 4(2) of the Securities Act. In the Merger the following issuances will take place: . each outstanding share of ChipPAC California Class A common stock, par value $0.01, will be converted into and become one share of Class A common stock of the Registrant ("Registrant Class A Common Stock"); . each outstanding share of ChipPAC California Class B common stock, par value $0.01, will be converted into and become one share of Class B common stock of the Registrant ("Registrant Class B Common Stock"); . each outstanding share of ChipPAC California Class L common stock, par value $0.01 will be converted into and become one share of Registrant Class A Common Stock plus an additional number of shares of Registrant Class A Common Stock determined by dividing a preferential distribution, based in part on the original cost of such share plus an amount which accrues daily at a rate of 12% per annum, compounded quarterly, by the per share price of the Registrant Class A Common Stock in the offering to which this Registration Statement relates; . each share of outstanding ChipPAC California Class A Convertible preferred stock, $0.01 par value, will be converted into one share of Registrant Class A Convertible preferred stock, par value $0.01; . each share of outstanding ChipPAC California Class B preferred stock, par value $0.01, will be converted into one share of Registrant Class B preferred stock, par value $0.01; and . each share of outstanding ChipPAC California Class C preferred stock, par value $0.01, will be converted into one share of Registrant Class C preferred stock, par value $0.01. ChipPAC California completed a recapitalization on August 5, 1999. In connection with the recapitalization, ChipPAC California issued: . 4,500,000 shares of Class L common stock, par value $0.01, and 40,500,000 shares of Class A common stock, par value $0.01, to Bain Capital Fund VI, L.P. and its affiliates for a total of $45,000,000; . 4,500,000 shares of Class L common stock, par value $0.01, and 40,500,000 shares of Class A common stock, par value $0.01, to SXI Group LLC and its affiliates for a total of $45,000,000; . 1,000,000 shares of Class L common stock, par value $0.01, 9,000,000 shares of Class A common stock, par value $0.01 and 30,000 shares of Class B Preferred Stock, par value $0.01, to Hyundai Electronics America in exchange for all of the previously outstanding capital stock of ChipPAC California held by Hyundai Electronics America; II-2 . 100,000 shares of Class L common stock, par value $0.01, and 900,000 shares of Class A common stock, par value $0.01, to each of ChipPAC Equity Investors LLC and Sankaty High Yield Asset Partners, L.P. for a total of $2,000,000; . 40,000 shares of Class B preferred stock, par value $0.01, to Hyundai Electronics America for $40,000,000; and . 10,000 shares of Class A Convertible preferred stock, par value $0.01, to Intel Corporation for $10,000,000. The sales and issuances above were deemed exempt from registration under the Securities Act of 1933, as amended, by virtue of Section 4(2), 3(a)(9) or 3(a)(11). In October 1999, pursuant to its 1999 Stock Purchase and Option Plan, ChipPAC California authorized to a group of 213 employees: (i) the sale of 303,500 shares of Class L common stock, par value $0.01, at a price of $9.00 per share, and the sale of 2,731,500 shares of Class A common stock, par value $0.01, at a price of $0.1111 per share, for an aggregate purchase price of $3,035,000, (ii) the sale of 2,470,000 shares Class A common stock, par value $0.01 per share, at a price of $0.1111 per share, which shares vest over time, (iii) the grant of options to purchase an aggregate of 1,051,750 shares of Class A common stock at a price of $0.1111 per share and (iv) the grant of options to purchase an aggregate of 2,285,500 shares of Class A common stock at a price of $2.10 per share. The options are not transferable, and neither the options nor the employees' rights to the time vesting stock vest prior to August 2000. In January 2000, pursuant to its 1999 Stock Purchase and Option Plan, ChipPAC California authorized to a group of 27 employees: (i) the sale of 20,000 shares of Class L common stock, par value $0.01, at a price of $9.00 per share, and the sale of 180,000 shares of Class A common stock, par value $0.01, at a price of $0.1111 per share, for an aggregate purchase price of $200,000, (ii) the sale of 75,000 shares of Class A common stock, par value $0.01 per share, at a price of $0.1111 per share, which shares vest over time, (iii) the grant of options to purchase an aggregate of 130,750 shares of Class A common stock at a price of $0.1111 per share and (iv) the grant of options to purchase an aggregate of 108,000 shares of Class A common stock at a price of $2.10 per share. The options are not transferable, and neither the options nor the employees' rights to the time vesting stock vest prior to January 2001. In April 2000, pursuant to its 1999 Stock Purchase and Option Plan, ChipPAC California authorized to a group of 11 employees: (i) the grant of options to purchase an aggregate of 57,500 shares of Class A common stock at a price of $0.1111 per share and (ii) the grant of options to purchase an aggregate of 5,000 shares of Class A common stock at a price of $2.10 per share. The options are not transferable, and the options do not vest prior to April 2001. On June 30, 2000, ChipPAC California issued 17,500 shares of Class C preferred stock, par value $0.01, to Intersil Corporation ("Intersil") in connection with and as partial consideration for ChipPAC California's acquisition of Intersil's Malaysian business. The sales and issuances above were deemed exempt from registration under the Securites Act of 1933, as amended, by virtue of Section 4(2) and Rule 701 of the Securities Act. Item 16. Exhibits and Financial Statement Schedules. (a) Exhibits. 1.1 Form of Underwriting Agreement. 2.1 Amended and Restated Agreement and Plan of Merger of ChipPAC, Inc., a California corporation, and ChipPAC, Inc., a Delaware corporation. 2.2 Agreement and Plan of Recapitalization and Merger, dated as of March 13, 1999, by and among Hyundai Electronics Industries Co., Ltd., Hyundai Electronics America, ChipPAC, Inc. and ChipPAC Merger Corp.*
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Exhibit No. Description ----------- ----------- 2.3 First Amendment to Agreement and Plan of Recapitalization and Merger, dated as of June 16, 1999 by and among Hyundai Electronics Industries Co., Ltd., Hyundai Electronics America, ChipPAC, Inc. and ChipPAC Merger Corp.* 2.4 Second Amendment to Agreement and Plan of Recapitalization and Merger, dated as of August 5, 1999, by and among Hyundai Electronics Industries Co., Ltd., Hyundai Electronics America, ChipPAC, Inc. and ChipPAC Merger Corp.* 3.1 Amended and Restated Certificate of Incorporation of ChipPAC, Inc.** 3.2 Amended and Restated By-Laws of ChipPAC, Inc. 4.1 Specimen certificate for ChipPAC, Inc. Common Stock. 5.1 Opinion of Kirkland & Ellis.** 10.1 Credit Agreement, dated as of August 5, 1999, as amended and restated as of June 30, 2000, by and among ChipPAC International Company Limited, ChipPAC, Inc., the Lenders listed therein and Credit Suisse First Boston, as Administrative Agent, Sole Lead Manager and Collateral Agent.** 10.2 Guaranty, dated as of August 5, 1999, by and among ChipPAC, Inc. and certain subsidiaries of ChipPAC, Inc., in favor of Credit Suisse First Boston.* 10.3 Subsidiary Guaranty Agreement, dated as of August 5, 1999, by and among ChipPAC Korea Company Ltd., ChipPAC Limited, ChipPAC (Barbados) Ltd., ChipPAC Luxembourg S.a.R.L., ChipPAC Liquidity Management Hungary Limited Liability Company and ChipPAC International Company Limited, in favor of Firstar Bank of Minnesota, N.A.* 10.4 Amended and Restated Stockholders Agreement, dated as of August 5, 1999, by and among ChipPAC, Inc. the Hyundai Group (as defined therein), the Bain Group (as defined therein), the SXI Group (as defined therein), Intel Corporation, ChipPAC Equity Investors LLC, and Sankaty High Yield Asset Partners, L.P.* 10.5 Amended and Restated Registration Agreement, dated as of August 5, 1999, by and among ChipPAC, Inc., the Hyundai Stockholders (as defined therein), the Bain Stockholders (as defined therein), the SXI Stockholders (as defined therein), Intel Corporation, ChipPAC Equity Investors LLC, and Sankaty High Yield Asset Partners, L.P.* 10.5.1 Amendment No. 1 to Amended and Restated Registration Agreement, dated as of June 30, 2000, by and among ChipPAC, Inc., Sapphire Worldwide Investments, Inc., the Bain Stockholders (as defined therein) and SXI Group LLC.** 10.5.2 Form of Amendment No. 2 to Amended and Restated Registration Agreement, dated as of July 13, 2000, by and among ChipPAC, Inc., Qualcomm Incorporated, SXI Group LLC and the Bain Shareholders (as defined therein).** 10.6 Transition Services Agreement, dated as of August 5, 1999, by and among Hyundai Electronics Industries Co., Ltd., Hyundai Electronics America, ChipPAC, Inc., ChipPac Korea Company Ltd., Hyundai Electronis Company (Shanghai) Ltd., ChipPAC Assembly and Test (Shanghai) Company Ltd., ChipPAC Barbados Limited and ChipPAC Limited.* 10.7 Lease Agreement, dated as of June 30, 1998, by and between Hyundai Electronics Industries Co., Ltd. and ChipPAC Korea Ltd.* 10.7.1 Amendment Agreement, dated September 30, 1998, to Lease Agreement, dated June 30, 1998, by and between Hyundai Electronics Industries Co., Ltd. and ChipPAC Korea Ltd.* 10.7.2 Amendment Agreement 2, dated September 30, 1999, to Lease Agreement, dated June 30, 1998, by and between Hyundai Electronics Industries Co., Ltd. and ChipPAC Korea Ltd.* 10.8 Agreement Concerning Supply of Utilities, Use of Welfare Facilities and Management Services for Real Estate, dated as of June 30, 1998, by and between Hyundai Electronics Industries Co., Ltd. and ChipPAC Korea Ltd.*
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Exhibit No. Description ----------- ----------- 10.9 Service Agreement, dated as of August 5, 1999, by and between Hyundai Electronics Industries Co., Ltd. and ChipPAC Limited.+* 10.10 Sublease Agreement, dated as of May 1, 1998, by and between Hyundai Electronics America and ChipPAC, Inc.* 10.11 Patent Sublicense Agreement, dated as of August 5, 1999, by and between Hyundai Electronics Industries Co., Ltd. and ChipPAC Limited.* 10.12 TCC License Agreement, dated December 22, 1998, between Tessera Inc., the Tessera Affiliates (as defined therein), ChipPAC, Inc. and the Licensee Affiliates (as defined therein).+* 10.12.1 Letter Agreement, dated July 15, 1999, by and among ChipPAC, Inc., Hyundai Electronics America, ChipPAC Limited and Tessera, Inc.* 10.13 Materials Agreement, dated as of July 1, 1999, by and between ChipPAC Limited and Intel Corporation.+* 10.14 Assembly Services Agreement, dated as of August 5, 1999, by and between Intel Corporation and ChipPAC Limited.+* 10.15 Stock Purchase Agreement, dated as of August 5, 1999, by and between ChipPAC, Inc. and Intel Corporation.* 10.16 Warrant to Purchase Class B Common Stock of ChipPAC, Inc., dated as of August 5, 1999, issued to Intel Corporation.* 10.17 Advisory Agreement, dated as of August 5, 1999, by and among ChipPAC, Inc., ChipPAC Limited, ChipPAC Operating Limited and Bain Capital, Inc.* 10.18 Advisory Agreement, dated as of August 5, 1999, by and among ChipPAC, Inc., ChipPAC Limited, ChipPAC Operating Limited and SXI Group LLC.* 10.19 Employment Agreement, dated as of October 1, 1999, between ChipPAC, Inc. and Dennis McKenna.* 10.20 ChipPAC, Inc. 1999 Stock Purchase and Option Plan.* 10.21 ChipPAC, Inc. 2000 Equity Incentive Plan.** 10.22 ChipPAC, Inc. 2000 Employee Stock Purchase Plan.** 10.23.1 Form of Key Employee Purchased Stock Agreement.* 10.23.2 Form of Key Employee Purchased Stock Agreement (with Loan).* 10.24 Form of Employee Restricted Stock Agreement.* 10.25 Form of Directors Tranche I Stock Option Agreement.* 10.26 Form of Employees Tranche I Stock Option Agreement.* 10.27 Form of Tranche II Stock Option Agreement.* 10.28 Indenture, dated as of July 29, 1999, by and among ChipPAC International Limited, ChipPAC Merger Corp. and Firstar Bank of Minnesota, N.A., as trustee.* 10.29 First Supplemental Indenture, dated as of August 5, 1999, by and among ChipPAC International Company Limited, ChipPAC, Inc. and Firstar Bank of Minnesota, N.A., as trustee.* 10.30 12 3/4% Senior Subordinated Notes Due 2009.* 10.31 Form of Series B 12 3/4% Senior Subordinated Notes Due 2009.* 10.32 Intellectual Property Rights Agreement, entered into as of June 30, 2000, by and between Intersil Corporation and ChipPAC Limited.** 10.33 Supply Agreement, entered into as of June 30, 2000, by and between Intersil Corporation and ChipPAC Limited.**
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Exhibit No. Description ----------- ----------- 10.34 Shareholders Agreement, dated as of June 30, 2000, by and among ChipPAC, Inc., the Bain Group (as defined therein), the SXI Group (as defined therein) and Sapphire Worldwide Investments, Inc.** 10.35 Class A Common Stock Purchase Agreement, dated as of July 13, 2000, by and between ChipPAC, Inc. and Qualcomm Incorporated.** 10.36 Promissory Note, dated as of August 2, 2000 by and between Dennis McKenna and ChipPAC, Inc. 10.37 Promissory Note, dated as of August 2, 2000, by and between Robert Krakauer and ChipPAC, Inc. 10.38 Supplemental Agreement No. 1 to the Advisory Agreement, dated as of August 2, 2000, by and among ChipPAC, Inc., ChipPAC Limited, ChipPAC International Company Limited and Bain Capital, Inc. 10.39 Supplemental Agreement No. 1 to the Advisory Agreement, dated as of August 2, 2000, by and among ChipPAC, Inc., ChipPAC Limited, ChipPAC International Company Limited and SXI Group LLC. 21.1 Subsidiaries of ChipPAC, Inc., ChipPAC International Company Limited, ChipPAC (Barbados) Ltd., ChipPAC Limited, ChipPAC Liquidity Management Limited Liability Company, ChipPAC Luxembourg S.a.R.L. and ChipPAC Korea Company Ltd.* 23.1 Consent of PricewaterhouseCoopers LLP.** 23.2 Consent of Ernst & Young LLP.** 23.3 Consent of Kirkland & Ellis (included in Exhibit 5.1).** 24.1 Powers of Attorney.** 27.1 Financial Data Schedule.**
- --------------------- * Incorporated by reference to the Registrant's Form S-4 (No. 333-91641). ** Previously filed. + Confidential treatment has been granted as to certain portions of these exhibits, which are incorporated by reference. (b) Financial Statement Schedules. The following financial statement schedules for the three years ended December 31, 1999 are included in this registration statement. Schedule II--Valuation and Qualifying Accounts and Reserves--Allowance for Doubtful Accounts (in thousands)
Additions charged Deductions Balance Balance at to Costs and and at End Year Ended December 31 beginning of year Expenses Write-offs of Period - ---------------------- ----------------- ----------------- ---------- --------- 1999.................. 1,162 144 (110) 1,196 1998.................. 375 787 -- 1,162 1997.................. 85 404 (114) 375
II-6 Item 17. Undertakings. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to provisions described in Item 14 above, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. The undersigned Registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the Registrant pursuant to Rule 424 (b)(1) or (4) or 497 (h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. The undersigned Registrant hereby undertakes to provide to the underwriters at the closing specified in the Underwriting Agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser. II-7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Pre-Effective Amendment No. 2 to the Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Santa Clara, State of California, on August 4, 2000. ChipPAC, Inc. By: /s/ Dennis P. McKenna ----------------------------------- Name: Dennis P. McKenna Title: President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Pre-Effective Amendment No. 2 to the Registration Statement on Form S-1 has been signed by the following persons in the capacity and on the date indicated. POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Dennis P. McKenna, Robert Krakauer and Curt Mason, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him/her and in his/her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement (and any registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, for the offering which this Registration Statement relates), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he/she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his/her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Signature Title Date --------- ----- ---- /s/ Dennis P. McKenna President and Chief August 4, 2000 ____________________________________ Executive Officer Dennis P. McKenna (Principal Executive Officer) and Director /s/ Robert Krakauer Chief Financial Officer August 4, 2000 ____________________________________ (Principal Financial Robert Krakauer Officer) * Vice President of Finance August 4, 2000 ____________________________________ and Corporate Controller Curt Mason (Principal Accounting Officer) * Director August 4, 2000 ____________________________________ David Dominik
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Signature Title Date --------- ----- ---- * Director August 4, 2000 ____________________________________ Edward Conard * Director August 4, 2000 ____________________________________ Marshall Haines * Director August 4, 2000 ____________________________________ Michael A. Delaney * Director August 4, 2000 ____________________________________ Paul C. Schorr, IV * Director August 4, 2000 ____________________________________ Joseph Martin * Director August 4, 2000 ____________________________________ Chong Sup Park
* The undersigned, by signing his name hereto, does hereby sign and execute this Pre-Effective Amendment No. 2 to the Registration Statement on Form S-1 on behalf of the above named officer and directors of the Registrant pursuant to the Power of Attorney executed by such officer and/or director and previously filed with the Securities and Exchange Commission. /s/ Robert Krakauer *By: __________________________ Robert Krakauer Attorney-in-Fact II-9 Exhibit Index
Exhibit No. Description ----------- ----------- 1.1 Form of Underwriting Agreement. 2.1 Amended and Restated Agreement and Plan of Merger of ChipPAC, Inc., a California corporation, and ChipPAC, Inc., a Delaware corporation. 2.2 Agreement and Plan of Recapitalization and Merger, dated as of March 13, 1999, by and among Hyundai Electronics Industries Co., Ltd., Hyundai Electronics America, ChipPAC, Inc. and ChipPAC Merger Corp.* 2.3 First Amendment to Agreement and Plan of Recapitalization and Merger, dated as of June 16, 1999 by and among Hyundai Electronics Industries Co., Ltd., Hyundai Electronics America, ChipPAC, Inc. and ChipPAC Merger Corp.* 2.4 Second Amendment to Agreement and Plan of Recapitalization and Merger, dated as of August 5, 1999, by and among Hyundai Electronics Industries Co., Ltd., Hyundai Electronics America, ChipPAC, Inc. and ChipPAC Merger Corp.* 3.1 Amended and Restated Certificate of Incorporation of ChipPAC, Inc.** 3.2 Amended and Restated By-Laws of ChipPAC, Inc. 4.1 Specimen certificate for ChipPAC, Inc. Common Stock. 5.1 Opinion of Kirkland & Ellis.** 10.1 Credit Agreement, dated as of August 5, 1999, as amended and restated as of June 30, 2000, by and among ChipPAC International Company Limited, ChipPAC, Inc., the Lenders listed therein and Credit Suisse First Boston, as Administrative Agent, Sole Lead Manager and Collateral Agent.** 10.2 Guaranty, dated as of August 5, 1999, by and among ChipPAC, Inc. and certain subsidiaries of ChipPAC, Inc., in favor of Credit Suisse First Boston.* 10.3 Subsidiary Guaranty Agreement, dated as of August 5, 1999, by and among ChipPAC Korea Company Ltd., ChipPAC Limited, ChipPAC (Barbados) Ltd., ChipPAC Luxembourg S.a.R.L., ChipPAC Liquidity Management Hungary Limited Liability Company and ChipPAC International Company Limited, in favor of Firstar Bank of Minnesota, N.A.* 10.4 Amended and Restated Stockholders Agreement, dated as of August 5, 1999, by and among ChipPAC, Inc. the Hyundai Group (as defined therein), the Bain Group (as defined therein), the SXI Group (as defined therein), Intel Corporation, ChipPAC Equity Investors LLC, and Sankaty High Yield Asset Partners, L.P.* 10.5 Amended and Restated Registration Agreement, dated as of August 5, 1999, by and among ChipPAC, Inc., the Hyundai Stockholders (as defined therein), the Bain Stockholders (as defined therein), the SXI Stockholders (as defined therein), Intel Corporation, ChipPAC Equity Investors LLC, and Sankaty High Yield Asset Partners, L.P.* 10.5.1 Amendment No. 1 to Amended and Restated Registration Agreement, dated as of June 30, 2000, by and among ChipPAC, Inc., Sapphire Worldwide Investments, Inc., the Bain Stockholders (as defined therein) and SXI Group LLC.** 10.5.2 Form of Amendment No. 2 to Amended and Restated Registration Agreement, dated as of July 13, 2000, by and among ChipPAC, Inc., Qualcomm Incorporated, SXI Group LLC and the Bain Shareholders (as defined therein).** 10.6 Transition Services Agreement, dated as of August 5, 1999, by and among Hyundai Electronics Industries Co., Ltd., Hyundai Electronics America, ChipPAC, Inc., ChipPac Korea Company Ltd., Hyundai Electronis Company (Shanghai) Ltd., ChipPAC Assembly and Test (Shanghai) Company Ltd., ChipPAC Barbados Limited and ChipPAC Limited.* 10.7 Lease Agreement, dated as of June 30, 1998, by and between Hyundai Electronics Industries Co., Ltd. and ChipPAC Korea Ltd.*
Exhibit No. Description ----------- ----------- 10.7.1 Amendment Agreement, dated September 30, 1998, to Lease Agreement, dated June 30, 1998, by and between Hyundai Electronics Industries Co., Ltd. and ChipPAC Korea Ltd.* 10.7.2 Amendment Agreement 2, dated September 30, 1999, to Lease Agreement, dated June 30, 1998, by and between Hyundai Electronics Industries Co., Ltd. and ChipPAC Korea Ltd.* 10.8 Agreement Concerning Supply of Utilities, Use of Welfare Facilities and Management Services for Real Estate, dated as of June 30, 1998, by and between Hyundai Electronics Industries Co., Ltd. and ChipPAC Korea Ltd.* 10.9 Service Agreement, dated as of August 5, 1999, by and between Hyundai Electronics Industries Co., Ltd. and ChipPAC Limited.+* 10.10 Sublease Agreement, dated as of May 1, 1998, by and between Hyundai Electronics America and ChipPAC, Inc.* 10.11 Patent Sublicense Agreement, dated as of August 5, 1999, by and between Hyundai Electronics Industries Co., Ltd. and ChipPAC Limited.* 10.12 TCC License Agreement, dated December 22, 1998, between Tessera Inc., the Tessera Affiliates (as defined therein), ChipPAC, Inc. and the Licensee Affiliates (as defined therein).+* 10.12.1 Letter Agreement, dated July 15, 1999, by and among ChipPAC, Inc., Hyundai Electronics America, ChipPAC Limited and Tessera, Inc.* 10.13 Materials Agreement, dated as of July 1, 1999, by and between ChipPAC Limited and Intel Corporation.+* 10.14 Assembly Services Agreement, dated as of August 5, 1999, by and between Intel Corporation and ChipPAC Limited.+* 10.15 Stock Purchase Agreement, dated as of August 5, 1999, by and between ChipPAC, Inc. and Intel Corporation.* 10.16 Warrant to Purchase Class B Common Stock of ChipPAC, Inc., dated as of August 5, 1999, issued to Intel Corporation.* 10.17 Advisory Agreement, dated as of August 5, 1999, by and among ChipPAC, Inc., ChipPAC Limited, ChipPAC Operating Limited and Bain Capital, Inc.* 10.18 Advisory Agreement, dated as of August 5, 1999, by and among ChipPAC, Inc., ChipPAC Limited, ChipPAC Operating Limited and SXI Group LLC.* 10.19 Employment Agreement, dated as of October 1, 1999, between ChipPAC, Inc. and Dennis McKenna.* 10.20 ChipPAC, Inc. 1999 Stock Purchase and Option Plan.* 10.21 ChipPAC, Inc. 2000 Equity Incentive Plan.** 10.22 ChipPAC, Inc. 2000 Employee Stock Purchase Plan.** 10.23.1 Form of Key Employee Purchased Stock Agreement.* 10.23.2 Form of Key Employee Purchased Stock Agreement (with Loan).* 10.24 Form of Employee Restricted Stock Agreement.* 10.25 Form of Directors Tranche I Stock Option Agreement.* 10.26 Form of Employees Tranche I Stock Option Agreement.* 10.27 Form of Tranche II Stock Option Agreement.* 10.28 Indenture, dated as of July 29, 1999, by and among ChipPAC International Limited, ChipPAC Merger Corp. and Firstar Bank of Minnesota, N.A., as trustee.* 10.29 First Supplemental Indenture, dated as of August 5, 1999, by and among ChipPAC International Company Limited, ChipPAC, Inc. and Firstar Bank of Minnesota, N.A., as trustee.* 10.30 12 3/4% Senior Subordinated Notes Due 2009.* 10.31 Form of Series B 12 3/4% Senior Subordinated Notes Due 2009.*
Exhibit No. Description ----------- ----------- 10.32 Intellectual Property Rights Agreement, entered into as of June 30, 2000, by and between Intersil Corporation and ChipPAC Limited.** 10.33 Supply Agreement, entered into as of June 30, 2000, by and between Intersil Corporation and ChipPAC Limited.** 10.34 Shareholders Agreement, dated as of June 30, 2000, by and among ChipPAC, Inc., the Bain Group (as defined therein), the SXI Group (as defined therein) and Sapphire Worldwide Investments, Inc.** 10.35 Class A Common Stock Purchase Agreement, dated as of July 13, 2000, by and between ChipPAC, Inc. and Qualcomm Incorporated.** 10.36 Promissory Note, dated as of August 2, 2000, by and between Dennis McKenna and ChipPAC, Inc. 10.37 Promissory Note, dated as of August 2, 2000, by and between Robert Krakauer and ChipPAC, Inc. 10.38 Supplemental Agreement No. 1 to the Advisory Agreement, dated as of August 2, 2000, by and among ChipPAC, Inc., ChipPAC Limited, ChipPAC International Company Limited and Bain Capital, Inc. 10.39 Supplemental Agreement No. 1 to the Advisory Agreement, dated as of August 2, 2000, by and among ChipPAC, Inc., ChipPAC Limited, ChipPAC International Company Limited and SXI Group LLC. 21.1 Subsidiaries of ChipPAC, Inc., ChipPAC International Company Limited, ChipPAC (Barbados) Ltd., ChipPAC Limited, ChipPAC Liquidity Management Limited Liability Company, ChipPAC Luxembourg S.a.R.L. and ChipPAC Korea Company Ltd.* 23.1 Consent of PricewaterhouseCoopers LLP.** 23.2 Consent of Ernst & Young LLP.** 23.3 Consent of Kirkland & Ellis (included in Exhibit 5.1).** 24.1 Powers of Attorney.** 27.1 Financial Data Schedule.**
- --------------------- * Incorporated by reference to the Registrant's Form S-4 (No. 333-91641). ** Previously filed. + Confidential treatment has been granted as to certain portions of these exhibits, which are incorporated by reference. EX-1.1 2 0002.txt FORM OF UNDERWRITING AGREEMENT Exhibit 1.1 15,500,000 Shares ChipPAC, Inc. Class A Common Stock UNDERWRITING AGREEMENT ---------------------- August ., 2000 Credit Suisse First Boston Corporation Merrill Lynch, Pierce, Fenner & Smith Incorporated Deutsche Bank Securities Inc. FleetBoston Robertson Stephens Inc. Thomas Weisel Partners LLC, As Representatives of the Several Underwriters, c/o Credit Suisse First Boston Corporation Eleven Madison Avenue New York, N.Y. 10010-3629 Dear Sirs: 1. Introductory. ChipPAC, Inc., a Delaware corporation ("Company"), proposes to issue and sell 15,500,000 shares ("Firm Securities") of its Class A common stock ("Securities") and also proposes to issue and sell to the Underwriters, at the option of the Underwriters, an aggregate of not more than 2,325,000 additional shares ("Optional Securities") of its Securities as set forth below. The Firm Securities and the Optional Securities are herein collectively called the "Offered Securities". As part of the offering contemplated by this Agreement, Credit Suisse First Boston Corporation ("CSFBC") (the "Designated Underwriter") has agreed to reserve out of the Firm Securities purchased by it under this Agreement, up to 775,000 shares, for sale to the Company's directors, officers, employees and other parties associated with the Company (collectively, "Participants"), as set forth in the Prospectus (as defined herein) under the heading "Underwriting" (the "Directed Share Program"). The Firm Securities to be sold by the Designated Underwriter pursuant to the Directed Share Program (the "Directed Shares") will be sold by the Designated Underwriter pursuant to this Agreement at the public offering price. Any Directed Shares not subscribed for by the end of the business day on which this Agreement is executed will be offered to the public by the Underwriters as set forth in the Prospectus. The Company hereby agrees with the several Underwriters named in Schedule A hereto ("Underwriters") as follows: 2. Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the several Underwriters that: (a) A registration statement (No. 333-39428) relating to the Offered Securities, including a form of prospectus, has been filed with the Securities and Exchange Commission ("Commission") and either (i) has been declared effective under the Securities Act of 1933 ("Act") and is not proposed to be amended or (ii) is proposed to be amended by amendment or post-effective amendment. If such registration statement ("initial registration statement") has been declared effective, either (i) an additional registration statement ("additional registration statement") relating to the Offered Securities may have been filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has become effective upon filing pursuant to such Rule and the Offered Securities all have been duly registered under the Act pursuant to the initial registration statement and, if applicable, the additional registration statement or (ii) such an additional registration statement is proposed to be filed with the Commission pursuant to Rule 462(b) and will become effective upon filing pursuant to such Rule and upon such filing the Offered Securities will all have been duly registered under the Act pursuant to the initial registration statement and such additional registration statement. If the Company does not propose to amend the initial registration statement or if an additional registration statement has been filed and the Company does not propose to amend it, and if any post-effective amendment to either such registration statement has been filed with the Commission prior to the execution and delivery of this Agreement, the most recent amendment (if any) to each such registration statement has been declared effective by the Commission or has become effective upon filing pursuant to Rule 462(c) ("Rule 462(c)") under the Act or, in the case of the additional registration statement, Rule 462(b). For purposes of this Agreement, "Effective Time" with respect to the initial registration statement or, if filed prior to the execution and delivery of this Agreement, the additional registration statement means (i) if the Company has advised the Representatives that it does not propose to amend such registration statement, the date and time as of which such registration statement, or the most recent post-effective amendment thereto (if any) filed prior to the execution and delivery of this Agreement, was declared effective by the Commission or has become effective upon filing pursuant to Rule 462(c), or (ii) if the Company has advised the Representatives that it proposes to file an amendment or post-effective amendment to such registration statement, the date and time as of which such registration statement, as amended by such amendment or post-effective amendment, as the case may be, is declared effective by the Commission. If an additional registration statement has not been filed prior to the execution and delivery of this Agreement but the Company has advised the Representatives that it proposes to file one, "Effective Time" with respect to such additional registration statement means the date and time as of which such registration statement is filed and becomes effective pursuant to Rule 462(b). "Effective Date" with respect to the initial registration statement or the additional registration statement (if any) means the date of the Effective Time thereof. The initial registration statement, as amended at its Effective Time, including all information contained in the additional registration statement (if any) and deemed to be a part of the initial registration statement as of the Effective Time of the additional registration statement pursuant to the General Instructions of the Form on which it is filed and including all information (if any) deemed to be a part of the initial registration statement as of its Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is hereinafter referred to as the "Initial Registration Statement". The additional registration statement, as amended at its Effective Time, including the contents of the initial registration statement incorporated by reference therein and including all information (if any) deemed to be a part of the additional registration statement as of its Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the "Additional Registration Statement". The Initial Registration Statement and the Additional Registration Statement are herein referred to collectively as the "Registration Statements" and individually as a "Registration Statement". The form of prospectus relating to the Offered Securities, as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no such filing is required) as included in a Registration Statement, is hereinafter referred to as the "Prospectus". No document has been or will be prepared or distributed in reliance on Rule 434 under the Act. 2 (b) If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement: (i) on the Effective Date of the Initial Registration Statement, the Initial Registration Statement conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission ("Rules and Regulations") and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) on the Effective Date of the Additional Registration Statement (if any), each Registration Statement conformed, or will conform, in all material respects to the requirements of the Act and the Rules and Regulations and did not include, or will not include, any untrue statement of a material fact and did not omit, or will not omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) on the date of this Agreement, the Initial Registration Statement and, if the Effective Time of the Additional Registration Statement is prior to the execution and delivery of this Agreement, the Additional Registration Statement each conforms, and at the time of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing is required) at the Effective Date of the Additional Registration Statement in which the Prospectus is included, each Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the Rules and Regulations, and neither of such documents includes, or will include, any untrue statement of a material fact or omits, or will omit, to state any material fact required to be stated therein or necessary to make the statements therein not misleading. If the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement: on the Effective Date of the Initial Registration Statement, the Initial Registration Statement and the Prospectus will conform in all material respects to the requirements of the Act and the Rules and Regulations, neither of such documents will include any untrue statement of a material fact or will omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and no Additional Registration Statement has been or will be filed. The two preceding sentences do not apply to statements in or omissions from a Registration Statement or the Prospectus based upon written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information is that described as such in Section 7(b) hereof. (c) The Company has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing would not reasonably be expected to individually or in the aggregate (x) result in a material adverse effect on the properties, business, results of operations, financial condition or prospects of the Company and its subsidiaries taken as a whole, (y) interfere with or adversely affect the issuance or marketability of the Offered Securities or (z) in any manner draw into question the validity of this Agreement, the Registration Statements or the Prospectus (any of the events set forth in clauses (x), (y) or (z), a "Material Adverse Effect"). (d) Each subsidiary of the Company has been duly incorporated and is an existing corporation in good standing (to the extent such 3 a concept exists in such jurisdiction) under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; and each subsidiary of the Company is duly qualified to do business as a foreign corporation in good standing (to the extent such a concept exists in such jurisdiction) in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified and in good standing could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; all of the issued and outstanding capital stock of each subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and except for pledges in favor of CSFBC, as collateral agent, under the Credit Agreement, dated as of August 5, 1999, as amended, by and among ChipPAC International Company Limited, the Company, the lenders listed therein and CSFBC, the capital stock of each subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects. (e) The Offered Securities and all other outstanding shares of capital stock of the Company have been duly authorized; all outstanding shares of capital stock of the Company are, and, when the Offered Securities have been delivered and paid for in accordance with this Agreement on each Closing Date (as defined below), such Offered Securities will have been, validly issued, fully paid and nonassessable and will conform in all material respects to the description thereof contained in the Prospectus; and the stockholders of the Company have no preemptive rights with respect to the Securities, other than pursuant to the Amended and Restated Stockholders Agreement, dated as of August 5, 1999, by and among ChipPAC, Inc., the Hyundai Stockholders (as defined therein), the Bain Stockholders (as defined therein), the SXI Stockholders (as defined therein), Intel Corporation, ChipPAC Equity Investors LLC, and Sankaty High Yield Asset Partners, L.P., and the Shareholders Agreement, dated as of June 30, 2000, by and among ChipPAC, Inc., the Bain Group (as defined therein), the SXI Group (as defined therein) and Sapphire Worldwide Investments, Inc., which by their terms expire upon the consummation of this offering. (f) Except as disclosed in the Prospectus, there are no contracts, agreements or understandings between the Company or its subsidiaries and any person that would give rise to a valid claim against the Company or its subsidiaries or any Underwriter for a brokerage commission, finder's fee or other like payment in connection with this offering. (g) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to a Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act, other than the Amended and Restated Registration Agreement, dated as of August 5, 1999, as amended, among the Company, affiliates of Bain Capital, Inc. and SXI Group LLC (collectively, the "Equity Investors") and their designees, Hyundai Electronics America and Intel. (h) The Offered Securities have been approved for listing on The NASDAQ Stock Market's National Market subject to notice of issuance. (i) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required for the consummation of the transactions contemplated by 4 this Agreement in connection with the issuance and sale of the Offered Securities by the Company, except such as have been obtained and made under the Act and the rules and regulations of the Commission thereunder, the rules and regulations of the National Association of Securities Dealers, Inc. (the "NASD"), the rules and regulations of the NASDAQ Stock Market's National Market and such as may be required under state securities laws. (j) The execution, delivery and performance of this Agreement, and the issuance and sale of the Offered Securities will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, any rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any subsidiary of the Company or any of their properties, or (ii) any agreement or instrument to which the Company or any such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject, or (iii) the charter or by-laws of the Company or any such subsidiary, except (A) in each case, that any rights to indemnity and contribution may be limited by federal and state securities laws and public policy considerations and (B) in the case of clauses (i) and (ii) for such breaches, violations or defaults as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and the Company has full power and authority to authorize, issue and sell the Offered Securities as contemplated by this Agreement. (k) This Agreement has been duly authorized, executed and delivered by the Company. (l) Except as disclosed in the Prospectus, the Company and its subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them that are material to the Company and its subsidiaries taken as a whole, in each case free from liens, encumbrances and defects that would materially affect the value thereof or materially interfere with the use made or to be made thereof by them; and except as disclosed in the Prospectus, the Company and its subsidiaries hold any leased real or personal property that is material to the Company and its subsidiaries taken as a whole under valid and enforceable leases with no exceptions that would materially interfere with the use made or to be made thereof by them. (m) The Company and its subsidiaries possess adequate certificates, authorities or permits issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them and have not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that, if determined adversely to the Company or any of its subsidiaries, would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. (n) No labor strike, slowdown, stoppage or dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent, that would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. None of the Company or any of its subsidiaries has violated (A) any federal, state or local law or foreign law relating to discrimination in hiring, promotion or pay of employees, (B) any applicable wage or hour laws of, or (C) any provision of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the rules and regulations thereunder, except those violations that could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect. 5 (o) The Company and its subsidiaries own, possess, have the right to use or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, "Intellectual Property Rights") necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any Intellectual Property Rights that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect. (p) Except as disclosed in the Prospectus, neither the Company nor any of its subsidiaries is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, "Environmental Laws"), owns or operates any real property contaminated with any substance that is subject to any Environmental Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws, or is subject to any claim relating to any Environmental Laws, in each case, which violation, contamination, liability or claim would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and the Company is not aware of any pending investigation which might lead to such a claim. (q) Except as disclosed in the Prospectus, there are no pending actions, suits or proceedings against or affecting the Company, any of its subsidiaries or any of their respective properties that, if determined adversely to the Company or any of its subsidiaries, would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, or would materially and adversely affect the ability of the Company or any of its subsidiaries to perform their respective obligations under this Agreement, or which are otherwise material in the context of the sale of the Offered Securities; and no such actions, suits or proceedings are threatened or, to the Company's knowledge, contemplated. (r) The financial statements included in each Registration Statement and the Prospectus present fairly the financial position of the Company and its consolidated or combined subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States applied on a consistent basis and the schedules included in each Registration Statement present fairly the information required to be stated therein; the financial statements included in each Registration Statement and the Prospectus present fairly on the basis stated in the Prospectus the financial position of Intersil Technology Sdn. Bhd. as of the dates shown and their results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with the generally accepted accounting principles in the United States applied on a consistent basis and the schedules included in each Registration Statement present fairly the information required to be stated therein; and the assumptions used in preparing the pro forma financial statements included in each Registration Statement and the Prospectus provide a reasonable basis for presenting the significant effects directly attributable to the transactions or events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma columns 6 therein reflect the proper application of those adjustments to the corresponding historical financial statement amounts. (s) Except as disclosed in the Prospectus, since the date of the latest audited financial statements included in the Prospectus there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole, and, except as disclosed in or contemplated by the Prospectus, there has been no dividend or distribution of any kind declared, paid or made by the Company or any of its subsidiaries on any class of capital stock owned by any of them. (t) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940. (u) Furthermore, the Company represents and warrants to the Underwriters that (i) the Registration Statement, the Prospectus and any preliminary prospectus comply, and any further amendments or supplements thereto will comply, with any applicable laws or regulations of foreign jurisdictions in which the Prospectus or any preliminary prospectus, as amended or supplemented, if applicable, are distributed in connection with the Directed Share Program, and that (ii) no authorization, approval, consent, license, order, registration or qualification of or with any government, governmental instrumentality or court, other than such as have been obtained, is necessary under the securities law and regulations of foreign jurisdictions in which the Directed Shares are offered outside the United States. (v) The Company has not offered, or caused the Underwriters to offer, any offered Securities to any person pursuant to the Directed Share Program with the specific intent to unlawfully influence (i) a customer or supplier of the Company to alter the customer's or supplier's level or type of business with the Company or (ii) a trade journalist or publication to write or publish favorable information about the Company or its products. (w) None of the Company or any of its subsidiaries or, to the best knowledge of the Company and its subsidiaries, any director, officer, agent, employee or other person associated with or acting on behalf of the Company or its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment. 3. Purchase, Sale and Delivery of Offered Securities. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to sell to the Underwriters, and the Underwriters agree, severally and not jointly, to purchase from the Company, at a purchase price of $____ per share, the respective numbers of shares of Firm Securities set forth opposite the names of the Underwriters in Schedule A hereto. The Company will deliver the Firm Securities to the Representatives for the accounts of the Underwriters, against payment of the purchase price in Federal (same day) funds by official bank check or checks or wire 7 transfer to an account at a bank acceptable to CSFBC drawn to the order of the Company at the office of Cravath, Swaine & Moore, at 10:00 A.M., New York time, on August __, 2000, or at such other time not later than seven full business days thereafter as CSFBC and the Company determine, such time being herein referred to as the "First Closing Date". For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the First Closing Date (if later than the otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Offered Securities sold pursuant to the offering. The certificates for the Firm Securities so to be delivered will be in definitive form, in such denominations and registered in such names as CSFBC requests and will be made available for checking and packaging at the above office of Cravath, Swaine & Moore at least 24 hours prior to the First Closing Date. In addition, upon written notice from CSFBC given to the Company from time to time not more than 30 days subsequent to the date of the Prospectus, the Underwriters may purchase all or less than all of the Optional Securities at the purchase price per Security to be paid for the Firm Securities. The Company agrees to sell to the Underwriters the number of shares of Optional Securities specified in such notice and the Underwriters agree, severally and not jointly, to purchase such Optional Securities. Such Optional Securities shall be purchased for the account of each Underwriter in the same proportion as the number of shares of Firm Securities set forth opposite such Underwriter's name bears to the total number of shares of Firm Securities (subject to adjustment by CSFBC to eliminate fractions) and may be purchased by the Underwriters only for the purpose of covering over-allotments made in connection with the sale of the Firm Securities. No Optional Securities shall be sold or delivered unless the Firm Securities previously have been, or simultaneously are, sold and delivered. The right to purchase the Optional Securities or any portion thereof may be exercised from time to time and to the extent not previously exercised may be surrendered and terminated at any time upon notice by CSFBC to the Company. Each time for the delivery of and payment for the Optional Securities, being herein referred to as an "Optional Closing Date", which may be the First Closing Date (the First Closing Date and each Optional Closing Date, if any, being sometimes referred to as a "Closing Date"), shall be determined by CSFBC but shall be not later than five full business days after written notice of election to purchase Optional Securities is given. The Company will deliver the Optional Securities being purchased on each Optional Closing Date to the Representatives for the accounts of the several Underwriters, against payment of the purchase price therefor in Federal (same day) funds by official bank check or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to the order of the Company, at the above office of Cravath, Swaine & Moore. The certificates for the Optional Securities being purchased on each Optional Closing Date will be in definitive form, in such denominations and registered in such names as CSFBC requests upon reasonable notice prior to such Optional Closing Date and will be made available for checking and packaging at the above office of Cravath, Swaine & Moore at a reasonable time in advance of such Optional Closing Date. 4. Offering by Underwriters. It is understood that the several Underwriters propose to offer the Offered Securities for sale to the public as set forth in the Prospectus. 5. Certain Agreements of the Company. The Company agrees with the several Underwriters that: (a) If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Company will file the Prospectus with the Commission pursuant to and in accordance with subparagraph (1) (or, if applicable and if 8 consented to by CSFBC, subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the second business day following the execution and delivery of this Agreement or (B) the fifteenth business day after the Effective Date of the Initial Registration Statement. The Company will advise CSFBC promptly of any such filing pursuant to Rule 424(b). If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement and an additional registration statement is necessary to register a portion of the Offered Securities under the Act but the Effective Time thereof has not occurred as of such execution and delivery, the Company will file the additional registration statement or, if filed, will file a post-effective amendment thereto with the Commission pursuant to and in accordance with Rule 462(b) on or prior to 10:00 P.M., New York time, on the date of this Agreement or, if earlier, on or prior to the time the Prospectus is printed and distributed to any Underwriter, or will make such filing at such later date as shall have been consented to by CSFBC. (b) The Company will advise CSFBC promptly of any proposal to amend or supplement the initial or any additional registration statement as filed or the related prospectus or the Initial Registration Statement, the Additional Registration Statement (if any) or the Prospectus and will not effect such amendment or supplementation without CSFBC's consent; and the Company will also advise CSFBC promptly of the effectiveness of each Registration Statement (if its Effective Time is subsequent to the execution and delivery of this Agreement) and of any amendment or supplementation of a Registration Statement or the Prospectus and of the institution by the Commission of any stop order proceedings in respect of a Registration Statement and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (c) If, at any time when a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company will promptly notify CSFBC of such event and will promptly prepare and file with the Commission, at its own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither CSFBC's consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6. (d) As soon as practicable, but not later than the Availability Date (as defined below), the Company will make generally available to its securityholders an earnings statement covering a period of at least 12 months beginning after the Effective Date of the Initial Registration Statement (or, if later, the Effective Date of the Additional Registration Statement) which will satisfy the provisions of Section 11(a) of the Act. For the purpose of the preceding sentence, "Availability Date" means the 45th day after the end of the fourth fiscal quarter following the fiscal quarter that includes such Effective Date, except that, if such fourth fiscal quarter is the last quarter of the Company's fiscal year, "Availability Date" means the 90th day after the end of such fourth fiscal quarter. (e) The Company will furnish to the Representatives copies of each Registration Statement (6 of which will be signed and will 9 include all exhibits), each related preliminary prospectus, and, so long as a prospectus relating to the Offered Securities is required to be delivered under the Act in connection with sales by any Underwriter or dealer, the Prospectus and all amendments and supplements to such documents, in each case in such quantities as CSFBC requests. The Prospectus shall be so furnished on or prior to 3:00 P.M., New York time, on the business day following the later of the execution and delivery of this Agreement or the Effective Time of the Initial Registration Statement. All other documents shall be so furnished as soon as available. The Company will pay the expenses of printing and distributing to the Underwriters all such documents. (f) The Company will arrange for the qualification of the Offered Securities for sale under the laws of such jurisdictions as CSFBC designates and will continue such qualifications in effect so long as required for the distribution, provided that the Company will not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction. (g) During the period of five years hereafter, the Company will furnish to the Representatives and, upon request, to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Securities Exchange Act of 1934 or mailed to stockholders, and (ii) from time to time, such other information concerning the Company as CSFBC may reasonably request. (h) The Company will pay (i) all expenses incident to the performance of its obligations under this Agreement, (ii) for any filing fees and other expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities for sale under the laws of such jurisdictions as CSFBC designates and the printing of memoranda relating thereto, (iii) for the filing fee incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review by the NASD of the Offered Securities, (iv) for any travel expenses of the Company's officers and employees and any other expenses of the Company in connection with attending or hosting meetings with prospective purchasers of the Offered Securities and (v) for expenses incurred in distributing preliminary prospectuses and the Prospectus (including any amendments and supplements thereto) to the Underwriters. (i) For a period of 180 days after the date of the initial public offering of the Offered Securities, the Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, or file with the Commission a registration statement under the Act relating to, any additional shares of its Securities or securities convertible into or exchangeable or exercisable for any shares of its Securities, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the prior written consent of CSFBC. (j) In connection with the Directed Share Program, the Company will ensure that the Directed Shares will be restricted to the extent required by the NASD or the NASD rules from sale, transfer, assignment, pledge or hypothecation for a period of three months following the date of the effectiveness of the Registration Statement. The Designated Underwriter will notify the Company as to which Participants will need to be so restricted. The Company will direct the transfer agent to place stop transfer restrictions upon such securities for such period of time. 10 (k) The Company will pay all fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Shares Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the underwriters in connection with the Directed Share Program. Furthermore, the Company covenants with the Underwriters that the Company will comply with all applicable securities and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program. 6. Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for the Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of Company officers made pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions precedent: (a) The Representatives shall have received a letter, dated the date of delivery thereof (which, if the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, shall be on or prior to the date of this Agreement or, if the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement, shall be prior to the filing of the amendment or post-effective amendment to the registration statement to be filed shortly prior to such Effective Time), of PricewaterhouseCoopers LLP confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder and stating to the effect that: (i) in their opinion the financial statements and schedules examined by them and included in the Registration Statements comply as to form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations; (ii) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 71, Interim Financial Information, on the unaudited financial statements included in the Registration Statements; (iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that: (A) the unaudited financial statements included in the Registration Statements do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations or any material modifications should be made to such unaudited financial statements for them to be in conformity with generally accepted accounting principles; 11 (B) the unaudited consolidated net sales, net income and net income per share amounts for the six-month period ended June 30, 2000 included in the Prospectus do not agree with the amounts set forth in the unaudited consolidated financial statements for those same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited statements of income; (C) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than three business days prior to the date of this Agreement, there was any change in the capital stock or any increase in short-term indebtedness or long-term debt of the Company and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net current assets, as compared with amounts shown on the latest balance sheet included in the Prospectus; or (D) for the period from the closing date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year, in consolidated revenue, operating income or in the total or per share amounts of consolidated net income, except in all cases set forth in clauses (C) and (D) above for changes, increases or decreases which the Prospectus discloses have occurred or which are described in such letter; (iv) in their opinion, with respect to the unaudited pro forma combined condensed statements of income for the year ended December 31, 1999 and the three months ended March 31, 2000 and March 31, 1999 included in the Prospectus, (A) the assumptions of the Company's management provide a reasonable basis for presenting the significant effects directly attributable to the transactions described in the introductory information to these unaudited pro forma combined condensed financial statements, (B) the related pro forma adjustments give appropriate effect to those assumptions and (C) the pro forma column reflects the proper application of those adjustments to the historical financial statement amounts in these pro forma condensed consolidated financial statements; (v) on the basis of a reading of the pro forma combined condensed financial statements referred to in 6(a)(iv) above and inquiries of officials of the Company who have responsibility for financial and accounting matters about whether these unaudited pro forma combined condensed financial statements comply as to form in all material respects with the applicable accounting requirements of rule 11-02 of Regulation S-X, nothing came to their attention that caused them to believe that these unaudited pro forma combined condensed financial statements included in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of rule 11-02 of Regulation S-X; and (vi) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Registration Statements 12 (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. (b) The Representatives shall have received a letter, dated the date of delivery thereof (which, if the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, shall be on or prior to the date of this Agreement or, if the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement, shall be prior to the filing of the amendment or post-effective amendment to the registration statement to be filed shortly prior to such Effective Time), of Ernst & Young LLP confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder and stating to the effect that: (i) in their opinion the financial statements and schedules examined by them and included in the Registration Statements comply as to form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations; (ii) they have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 71, Interim Financial Information, on the unaudited financial statements of Intersil Technology Sdn. Bhd. included in the Registration Statements; (iii) on the basis of the review referred to in clause (ii) above, a reading of the latest available interim financial statements of Intersil Technology Sdn. Bhd., inquiries of officials of Intersil Technology Sdn. Bhd. and the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that: (A) the unaudited financial statements of Intersil Technology Sdn. Bhd. (1) included in the Registration Statements do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations or any material modifications should be made to such unaudited financial statements(1) for them to be in conformity with generally accepted accounting principles; (B) at the date of the latest available balance sheet of Intersil Technology Sdn. Bhd. read by such accountants, or at a subsequent specified date not more than three business days prior to the date of this Agreement, there was any change in the capital stock or any increase in short-term indebtedness or long- term debt of Intersil Technology Sdn. Bhd. or, at the date of the latest available balance sheet of Intersil Technology Sdn. Bhd. read by such accountants, there was 13 any decrease in consolidated net assets, as compared with amounts shown on the latest balance sheet of Intersil Technology Sdn. Bhd. included in the Prospectus; or (C) for the period from the closing date of the latest income statement of Intersil Technology Sdn. Bhd. included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year, in consolidated net sales, net operating income or in the total amounts of consolidated net income, except in all cases set forth in clauses (B) and (C) above for changes, increases or decreases which the Prospectus discloses have occurred or which are described in such letter; and (iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information of Intersil Technology Sdn. Bhd. contained in the Registration Statements (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of Intersil Technology Sdn. Bhd. subject to the internal controls of Intersil Technology Sdn. Bhd.'s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. For purposes of this subsection, (i) if the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement, "Registration Statements" shall mean the initial registration statement as proposed to be amended by the amendment or post-effective amendment to be filed shortly prior to its Effective Time, (ii) if the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement but the Effective Time of the Additional Registration is subsequent to such execution and delivery, "Registration Statements" shall mean the Initial Registration Statement and the additional registration statement as proposed to be filed or as proposed to be amended by the post-effective amendment to be filed shortly prior to its Effective Time, and (iii) "Prospectus" shall mean the prospectus included in the Registration Statements. (c) If the Effective Time of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 P.M., New York time, on the date of this Agreement or such later date as shall have been consented to by CSFBC. If the Effective Time of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 P.M., New York time, on the date of this Agreement or, if earlier, the time the Prospectus is printed and distributed to any Underwriter, or shall have occurred at such later date as shall have been consented to by CSFBC. If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing Date, no stop order suspending the 14 effectiveness of a Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or the Representatives, shall be contemplated by the Commission. (d) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the reasonable judgment of a majority in interest of the Underwriters including the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange or the NASDAQ Stock Market's National Market, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by U.S. Federal or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of a majority in interest of the Underwriters including the Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities. (e) The Representatives shall have received an opinion, dated such Closing Date, of Kirkland & Ellis, counsel for the Company, to the effect that: (i) The Company has been duly incorporated and is a corporation existing and in good standing under the General Corporation Law of the State of Delaware. The Company is qualified to do business and is in good standing in each jurisdiction listed on Schedule B hereto. (ii) The Company has all requisite corporate power and authority to own and lease its properties and to conduct its business as it is currently being conducted and as described in the Prospectus. (iii) This Agreement has been duly authorized, executed and delivered by the Company. (iv) The issuance of the Offered Securities to be sold on the date hereof pursuant to this Agreement has been duly authorized, and when appropriate certificates representing those Offered Securities are duly countersigned by the Company's transfer agent/registrar and delivered against payment of the agreed consideration therefor in accordance with this Agreement, those Offered Securities will be validly issued, fully paid and nonassessable. The issuance of those Offered Securities is not subject to any preemptive rights under the terms of the statute under which the Company is 15 incorporated, under the Company's Certificate of Incorporation or under any contractual provision of which we have knowledge. (v) All of the outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable. (vi) The Company's authorized capital stock conforms to the description of the terms thereof contained under the heading "Description of Capital Stock" in the Prospectus. (vii) The Company's execution and delivery of this Agreement, the Company's performance of its obligations in this Agreement and the Company's issuance and sale of the Offered Securities to you in accordance with this Agreement will not (i) require any consent, approval, authorization or order of, or filing with, any governmental agency or body or any court of the United States or the State of New York, except such as have been obtained and as may be required under the Act or the Securities Exchange Act of 1934, as amended, or as may be required under state securities (or "blue sky") laws or regulations, (ii) violate the Certificate of Incorporation or Bylaws, (iii) constitute a violation by the Company of any applicable provision of any law, statute or regulation (except that we express no opinion in this paragraph as to compliance with any disclosure requirement or any prohibition against fraud or misrepresentation or as to whether performance of the indemnification or contribution provisions in this Agreement would be permitted) or (iv) constitute a breach of or conflict with, or result in a default under, any existing obligation of the Company under any of the agreements filed as any of the exhibits to the Registration Statement (provided that such counsel expresses no opinion as to compliance with any financial test or cross-default provision in any such agreement). (viii) Such counsel has no knowledge about any legal or governmental proceeding that is pending or threatened against the Company that has caused such counsel to conclude that such proceeding is required by Item 103 of Regulation S-K to be described in the Prospectus but is not so described. Such counsel has no knowledge of any contract or other document to which the Company is a party or to which any of its property is subject that has caused such counsel to conclude that such contract is required to be described in the Registration Statement or the Prospectus but is not so described or is required to be filed as an exhibit to the Registration Statement but has not been so filed. (ix) A member of the Commission's staff advised such counsel by telephone that the Commission's Division of Corporation Finance, pursuant to authority delegated to it by the Commission, has entered an order declaring the Registration Statement effective under the Act on the Effective Date, and such counsel has no knowledge that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose have been instituted, are pending before, or overtly threatened by, the Commission. (x) To such counsel's knowledge, there are no contracts, agreements or understandings between the Company and any third party granting such third party the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be owned by such third party or to require the Company to include such securities in the securities registered pursuant to a Registration Statement or in any securities being registered pursuant to any other registration statement filed by the 16 Company under the Act, other than the Amended and Restated Registration Agreement, dated as of August 5, 1999, as amended, among the Company, affiliates of Bain Capital, Inc. and SXI Group LLC (collectively, the "Equity Investors") and their designees, Hyundai Electronics America and Intel. (xi) The information in the Registration Statement and the Prospectus under the headings "The Reclassification," "Business-- Intellectual Property," "Management--Employment Agreements," "--Option Grants," "--Employee Stock Purchase Plan," "Significant Relationships and Related Transactions--Malaysian Business," "--The Reclassification," "--The Recapitalization," "--Advisory Agreements," "--Stockholders Agreements," "--Registration Agreement," "--Transition Services Agreement," "--Patent and Technology License Agreement," "-- Services Agreement," "--Intel Materials Agreement," "--Intel Stock Purchase Agreement," "Description of Financing Arrangements," "Shares Eligible for Future Sale --Registration Agreement" and "Material United States Tax Considerations for Non-United States Holders" to the extent that it summarizes laws, governmental rules or regulations or documents is correct in all material respects. (xii) Such counsel shall also state that the purpose of such counsel's professional engagement was not to establish factual matters, and preparation of the Registration Statement involved many determinations of a wholly or partially nonlegal character. Such counsel need make no representation that it has independently verified the accuracy, completeness or fairness of the Prospectus or Registration Statement or that the actions taken in connection with the preparation of the Registration Statement or Prospectus (including the actions described below) were sufficient to cause the Prospectus or Registration Statement to be accurate, complete or fair. Such counsel need not pass upon and need not assume any responsibility for the accuracy, completeness or fairness of the Prospectus or the Registration Statement except to the extent otherwise explicitly indicated in numbered paragraphs (vi) and (xi) above. Such counsel shall however confirm that it has participated in conferences with representatives of the Company, representatives of the Underwriters, counsel for the Underwriters and representatives of the independent accountants for the Company during which disclosures in the Registration Statement and Prospectus and related matters were discussed. In addition, such counsel has reviewed certain corporate records furnished to it by the Company. Based upon such counsel's participation in the conferences and such counsel's document review identified above, such counsel's understanding of the applicable law and the experience such counsel has gained in such counsel's practice thereunder and relying to a large extent upon the opinions and statements of officers of the Company, such counsel can, however, advise the Representatives that nothing has come to such counsel's attention that has caused such counsel to conclude that the Registration Statement at its Effective Date contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) the Prospectus at the date it bears or as of such Closing Date contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (iii) as of the Effective Date or as of such Closing Date, the Registration Statement complied 17 as to form in all material respects to the requirements of Form S-1 or (iv) as of the Effective Date or the Closing Date, the Prospectus complied as to form in all material respects to the requirements of Form S-1. (f) The Representatives shall have received an opinion, dated such Closing Date, of Azim, Tunku Sarik & Wong, counsel for Intersil Technology Sdn. Bhd., to the effect that: (i) Intersil Technology Sdn. Bhd. has been duly incorporated and is an existing corporation under the laws of Malaysia, with corporate power and authority to own its properties and conduct its business as described in the Prospectus; and (ii) Intersil Technology Sdn. Bhd. does not require the consent, approval, authorization or order of, or filing with, any governmental agency or body or any court in Malaysia for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Offered Securities by the Company. (g) The Representatives shall have received from Cravath, Swaine & Moore, counsel for the Underwriters, such opinion or opinions, dated such Closing Date, with respect to the incorporation of the Company, the validity of the Offered Securities delivered on such Closing Date, the Registration Statements, the Prospectus and other related matters as the Representatives may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (h) The Representatives shall have received a certificate, dated such Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that: the representations and warranties of the Company in this Agreement are true and correct; the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date; no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission; the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) under the Act, prior to the time the Prospectus was printed and distributed to any Underwriter; and, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Prospectus or as described in such certificate. (i) The Representatives shall have received a letter, dated such Closing Date, of PricewaterhouseCoopers LLP which meets the requirements of subsection (a) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to such Closing Date for the purposes of this subsection. (j) The Representatives shall have received a letter, dated such Closing Date, of Ernst & Young LLP which meets the requirements of subsection (b) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to such Closing Date for the purposes of this subsection. 18 (k) On or prior to the date of this Agreement, the Representatives shall have received lockup letters from each of the executive officers and directors of the Company and stockholders listed on Schedule C hereto. (l) On or prior to the date of this Agreement, the Representatives shall have received waivers from each of the parties to the Amended and Restated Registration Agreement, dated as of August 5, 1999, waiving any rights arising under such agreement in respect of the Registration Statements. The Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. CSFBC may in its sole discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of an Optional Closing Date or otherwise. 7. Indemnification and Contribution. (a) The Company will indemnify and hold harmless each Underwriter, its partners, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act, against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement, the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in subsection (b) below; and provided, further, that with respect to any untrue statement or alleged untrue statement in or omission or alleged omission from any preliminary prospectus the indemnity agreement contained in this subsection (a) shall not inure to the benefit of any Underwriter from whom the person asserting any such losses, claims, damages or liabilities purchased the Offered Securities concerned, to the extent that a prospectus relating to such Offered Securities was required to be delivered by such Underwriter under the Act in connection with such purchase and any such loss, claim, damage or liability of such Underwriter results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Offered Securities to such person, a copy of the Prospectus if the Company had previously furnished copies thereof to such Underwriter. The Company agrees to indemnify and hold harmless the Designated Underwriter and each person, if any, who controls the Designated Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (the "Designated Entities"), from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) (i) caused by any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the consent of 19 the Company for distribution to Participants in connection with the Directed Share Program or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) caused by the failure of any Participant to pay for and accept delivery of Directed Shares that the Participant agreed to purchase; or (iii) related to, arising out of, or in connection with the Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the bad faith or gross negligence of the Designated Entities. (b) Each Underwriter will severally and not jointly indemnify and hold harmless the Company, its directors and officers and each person, if any who controls the Company within the meaning of Section 15 of the Act, against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Registration Statement, the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representatives specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred, it being understood and agreed that the only such information furnished by any Underwriter consists of (i) the following information in the Prospectus furnished on behalf of each Underwriter: the concession and reallowance figures appearing in the fourth paragraph under the caption "Underwriting"; (ii) the following information in the Prospectus furnished on behalf of CSFBC, Deutsche Bank Securities Inc., FleetBoston Robertson Stephens Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated: the senior credit facilities disclosure appearing in the fifteenth paragraph under the caption "Underwriting" and (iii) the following information in the Prospectus furnished on behalf of Thomas Weisel Partners LLC: the disclosure appearing in the nineteenth paragraph under the caption "Underwriting". (c) Promptly after receipt by an indemnified party under this Section or Section 9 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above or Section 9, notify the indemnifying party of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under subsection (a) or (b) above or Section 9. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section or Section 9, as the case may be, for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding anything contained herein to the contrary, if indemnity may be sought pursuant to the last paragraph in Section 7 (a) hereof in 20 respect of such action or proceeding, then in addition to such separate firm for the indemnified parties, the indemnifying party shall be liable for the reasonable fees and expenses of not more than one separate firm (in addition to any local counsel) for the Designated Underwriter for the defense of any losses, claims, damages and liabilities arising out of the Directed Share Program, and all persons, if any, who control the Designated Underwriter within the meaning of either Section 15 of the Act of Section 20 of the Exchange Act. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party unless such settlement (i) includes an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party. (d) If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint. (e) The obligations of the Company under this Section or Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter or the QIU (as hereinafter defined) within the meaning of the Act; and the obligations of the Underwriters under this Section shall be in addition to any liability which the 21 respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Company, to each officer of the Company who has signed a Registration Statement and to each person, if any, who controls the Company within the meaning of the Act. 8. Default of Underwriters. If any Underwriter or Underwriters default in their obligations to purchase Offered Securities hereunder on either the First or any Optional Closing Date and the aggregate number of shares of Offered Securities that such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of the total number of shares of Offered Securities that the Underwriters are obligated to purchase on such Closing Date, CSFBC may make arrangements satisfactory to the Company for the purchase of such Offered Securities by other persons, including any of the Underwriters, but if no such arrangements are made by such Closing Date, the non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Offered Securities that such defaulting Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters so default and the aggregate number of shares of Offered Securities with respect to which such default or defaults occur exceeds 10% of the total number of shares of Offered Securities that the Underwriters are obligated to purchase on such Closing Date and arrangements satisfactory to CSFBC and the Company for the purchase of such Offered Securities by other persons are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company, except as provided in Section 10 (provided that if such default occurs with respect to Optional Securities after the First Closing Date, this Agreement will not terminate as to the Firm Securities or any Optional Securities purchased prior to such termination). As used in this Agreement, the term "Underwriter" includes any person substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its default. 9. Qualified Independent Underwriter. The Company hereby confirms that at its request Deutsche Bank Securities Inc. has without compensation acted as "qualified independent underwriter" (in such capacity, the "QIU") within the meaning of Rule 2720 of the Conduct Rules of the NASD in connection with the offering of the Offered Securities. The Company will indemnify and hold harmless the QIU against any losses, claims, damages or liabilities, joint or several, to which the QIU may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon the QIU's acting (or alleged failing to act) as such "qualified independent underwriter" and will reimburse the QIU for any legal or other expenses reasonably incurred by the QIU in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred. 10. Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties and other statements of the Company or its officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the Company or any of their respective representatives, officers or directors or any controlling person, and will survive delivery of and payment for the Offered Securities. If this Agreement is terminated pursuant to Section 8 or if for any reason the purchase of the Offered Securities by the Underwriters is not consummated, the Company shall remain responsible for the expenses to be paid or reimbursed by it pursuant to Section 5 and the respective obligations of the Company and the Underwriters pursuant to Section 7 and the obligations of the Company pursuant to Section 9 shall remain in effect, and if any Offered Securities have been purchased hereunder the representations and warranties in Section 2 and all 22 obligations under Section 5 shall also remain in effect. If the purchase of the Offered Securities by the Underwriters is not consummated for any reason other than solely because of the termination of this Agreement pursuant to Section 8 or the occurrence of any event specified in clause (iii), (iv) or (v) of Section 6(d), the Company will reimburse the Underwriters for all out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Offered Securities. 11. Notices. All communications hereunder will be in writing and, if sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed to the Representatives c/o Credit Suisse First Boston Corporation, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking Department-- Transactions Advisory Group, or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at ChipPAC, Inc., 3151 Coronado Drive, Santa Clara, California 95054, Attention: Robert Krakauer; provided, however, that any notice to an Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to such Underwriter. 12. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 7, and no other person will have any right or obligation hereunder. 13. Representation of Underwriters. The Representatives will act for the several Underwriters in connection with this financing, and any action under this Agreement taken by the Representatives jointly or by CSFBC will be binding upon all the Underwriters. 14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. 15. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to principles of conflicts of laws. The Company hereby submits to the non-exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. 23 If the foregoing is in accordance with the Representatives' understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding agreement between the Company and the several Underwriters in accordance with its terms. Very truly yours, ChipPac, Inc. By______________________________________ Name: Dennis P. McKenna Title: President and Chief Executive Officer The foregoing Underwriting Agreement is hereby confirmed and accepted as of the date first above written. Credit Suisse First Boston Corporation Merrill Lynch, Pierce, Fenner & Smith Incorporated Deutsche Bank Securities Inc. Fleetboston Robertson Stephens Inc. Thomas Weisel Partners Llc Acting on behalf of themselves and as the Representatives of the several Underwriters. By Credit Suisse First Boston Corporation By________________________________________ Name: Title: 24 SCHEDULE A Number of Underwriter Firm Securities ----------- --------------- Credit Suisse First Boston Corporation...... Merrill Lynch, Pierce, Fenner & Smith Incorporated........................... Deutsche Bank Securities Inc................ FleetBoston Robertson Stephens Inc.......... Thomas Weisel Partners LLC.................. --------------- Total..................................... 15,500,000 =============== 25 SCHEDULE B 26 SCHEDULE C Dennis P. McKenna Robert Krakauer Gregory S. Bronzovic Bruce Stromstad Marcos Karnezos Robert Bowden Phang Guk Bing Soo Nam Lee Chin Bin The Tony Lin Edward Conard Bain Capital Fund VI, L.P. BCIP Associates II BCIP Associates II-B BCIP Associates II-C BCIP Trust Associates II BCIP Trust Associates II-B PEP Investments PTY Ltd. Sankaty High Yield Asset Partners, L.P. Michael A. Delaney David Dominik Marshall Haines Joseph Martin Joseph R. Martin Jennifer H. Martin Patrick F. Martin Kathleen Martin Mariah E. Martin Chong Sup Park BG Partners LLP 27 Citicorp Venture Capital LTD. CCT Partners VI, LP Irwin H. Billig Hyundai Electronics of America Intel Corporation Intersil Holding Corporation Qualcomm Incorporated 28 EX-2.1 3 0003.txt AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER Exhibit 2.1 AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER OF CHIPPAC, INC. A CALIFORNIA CORPORATION AND CHIPPAC, INC. A DELAWARE CORPORATION THIS AGREEMENT AND PLAN OF MERGER dated as of August 1, 2000 (the "Agreement") is between ChipPAC, Inc., a California corporation ("ChipPAC --------- ------- California"), and ChipPAC, Inc., a Delaware corporation ("ChipPAC Delaware"). - ---------- ---------------- ChipPAC California and ChipPAC Delaware are sometimes referred to herein as the "Constituent Corporations." ------------------------ RECITALS A. ChipPAC California is a corporation duly organized and existing under the laws of the State of California and has an authorized capital of 180,000,000 shares of Class A Common Stock (the "Class A Common Stock"), 180,000,000 shares -------------------- of Class B Common Stock (the "Class B Common Stock"), 20,000,000 shares of Class -------------------- L Common Stock (the "Class L Common Stock"), 10,000 shares of Class A -------------------- Convertible Preferred Stock (the "Class A Preferred Stock"), 105,000 shares of ----------------------- Class B Preferred Stock (the "Class B Preferred Stock"). ChipPAC California ----------------------- intends to authorize and issue shares of Class C Preferred Stock (the "Class C ------- Preferred Stock") to Intersil Corporation. Certain individuals and entities - --------------- (the "Optionees") own in the aggregate options to purchase 6,013,500 shares of --------- Class A Common Stock ("Options"). The Class A Common Stock, Class B Common ------- Stock, Class L Common Stock, Class A Preferred Stock and the Class B Preferred Stock, the Class C Preferred Stock and Options are collectively referred to herein as the "Equity Interests." ---------------- B. ChipPAC Delaware is a corporation duly organized and existing under the laws of the State of Delaware and is a wholly-owned subsidiary of ChipPAC California. C. The Board of Directors of ChipPAC California and ChipPAC Delaware have determined that, for the purpose of effecting the plan of reorganization, it is advisable and in the best interests of ChipPAC California, its stockholders, and ChipPAC Delaware that ChipPAC California merge with and into ChipPAC Delaware upon the terms and conditions herein provided. D. The respective Boards of Directors of ChipPAC California and ChipPAC Delaware have approved this Agreement. E. The terms of this Agreement were approved by the vote of a number of shares of each class of stock of ChipPAC California which equaled or exceeded the vote required. F. The terms of this Agreement were approved by the sole stockholder of ChipPAC Delaware. NOW, THEREFORE, in consideration of the mutual agreements and covenants set forth herein, ChipPAC California and ChipPAC Delaware hereby agree, subject to the terms and conditions hereinafter set forth as follows: I MERGER 1.1 Merger. In accordance with the provisions of this Agreement, the ------ Delaware General Corporation Law and the California General Corporation Law, ChipPAC California shall be merged with and into ChipPAC Delaware (the "Merger"), the separate existence of ChipPAC California shall cease and ChipPAC ------ Delaware shall survive the Merger and shall continue to be governed by the laws of the State of Delaware, and ChipPAC Delaware shall be, and is herein sometimes referred to as, the "Surviving Corporation," and the name of the Surviving --------------------- Corporation shall be ChipPAC, Inc. 1.2 Filing and Effectiveness. The Merger shall become effective ------------------------ immediately prior to the effectiveness of ChipPAC-Delaware's registration statement on Form S-1 (Reg. No. 333-39428); provided, however, that the Merger shall not become effective until an executed Certificate of Merger or an executed, acknowledged and certified counterpart of this Agreement meeting the requirements of the Delaware General Corporation Law and the California General Corporation Law shall have been filed with the Secretary of State of the State of Delaware. The date and time when the Merger shall become effective, as aforesaid, is herein called the "Effective Date of the Merger." ---------------------------- 1.3 Effect of the Merger. Upon the Effective Date of the Merger, the -------------------- separate existence of ChipPAC California shall cease and ChipPAC Delaware, as the Surviving Corporation, (i) shall continue to possess all of its assets, rights, powers and property as constituted immediately prior to the Effective Date of the Merger, (ii) shall be subject to all actions previously taken by its and ChipPAC California's Boards of Directors, (iii) shall succeed, without other transfer, to all of the assets, rights, powers and property of ChipPAC California in the manner as more fully set forth in Section 259 of the Delaware General Corporation Law, (iv) shall continue to be subject to all of its debts, liabilities and obligations as constituted immediately prior to the Effective Date of the Merger, and (v) shall succeed, without other transfer, to all of the debts, liabilities and obligations of ChipPAC California in the same manner as if ChipPAC Delaware had itself incurred them, all as more fully provided under the applicable provisions of the Delaware General Corporation Law. 2 II CHARTER DOCUMENTS, DIRECTORS AND OFFICERS 2.1 Certificate of Incorporation. The Amended and Restated Certificate of ---------------------------- Incorporation of ChipPAC Delaware (the "Certificate of Incorporation") ---------------------------- substantially in the form of Exhibit A attached hereto shall be the Certificate --------- of Incorporation of the Surviving Corporation until duly amended in accordance with the provisions thereof and applicable law. 2.2 Bylaws. The Amended and Restated Bylaws of ChipPAC Delaware ------ substantially in the form of Exhibit B attached hereto shall be the Bylaws of --------- the Surviving Corporation until duly amended in accordance with the provisions thereof and applicable law. 2.3 Directors and Officers. The directors and officers of ChipPAC ---------------------- Delaware immediately prior to the Effective Date of the Merger shall be the directors and officers of the Surviving Corporation until their respective successors shall have been duly elected and qualified or until as otherwise provided by law, or the Certificate of Incorporation of the Surviving Corporation or the Bylaws of the Surviving Corporation. III MANNER OF CONVERSION OF STOCK 3.1 Class A Common Stock. Upon the Effective Date of the Merger, each -------------------- share of Class A Common Stock of ChipPAC California issued and outstanding immediately prior thereto shall, by virtue of the Merger and without any action by the Constituent Corporations, the holder of such shares or any other person, be changed and converted into and exchanged for one fully paid and nonassessable share of Class A Common Stock, $0.01 par value, of the Surviving Corporation ("ChipPAC Delaware Class A Common Stock"). ------------------------------------- 3.2 Class B Common Stock. Upon the Effective Date of the Merger, each -------------------- share of Class B Common Stock of ChipPAC California issued and outstanding immediately prior thereto shall, by virtue of the Merger and without any action by the Constituent Corporations, the holder of such shares or any other person, be changed and converted into and exchanged for one fully paid and nonassessable share of ChipPAC Delaware Class B Common Stock (the "ChipPAC Delaware Class B ------------------------ Common Stock," and together with the ChipPAC Delaware Class A Common Stock, the - ------------ "ChipPAC Delaware Common Stock"). ----------------------------- 3.3 Class L Common Stock. Upon the Effective Date of the Merger, each -------------------- share of Class L Common Stock of ChipPAC California issued and outstanding immediately prior thereto shall, by virtue of the Merger and without any action by the Constituent Corporations, the holder of such shares or any other person, be changed and converted into and exchanged for a number of fully paid and nonassessable shares of ChipPAC Delaware Class A Common Stock, $0.01 par value equal to the sum of (i) one plus (ii) the quotient of (x) the Unreturned Original Cost plus Unpaid Yield of such share of Class L 3 Common Stock divided by (y) the price per share of the ChipPAC Delaware Common Stock paid by investors in the Public Offering. For purposes of this Section 3.3, the following terms shall have the following meanings: "Distribution" means each distribution made by ChipPAC California to ------------ holders of capital stock, whether in cash, property, or securities of ChipPAC California and whether by dividend, liquidating distributions or otherwise; provided that neither of the following shall be a Distribution: (a) any redemption or repurchase by ChipPAC California of any capital stock held by an employee, director or former employee of ChipPAC California or any of its subsidiaries or (b) any recapitalization or exchange of any capital stock, or any subdivision (by stock split, stock dividend or otherwise) or any combination (by stock split, stock dividend or otherwise) of any outstanding capital stock. "Original Cost" of each share of Class L Common Stock shall be equal to ------------- $9.00 per share (as proportionally adjusted for all stock splits, stock dividends and other recapitalizations affecting the Class L Common Stock). "Public Offering" means ChipPAC-Delaware's initial public offering of --------------- common stock pursuant to a registration statement on Form S-1 (Reg. No. 333- 39428). "Unpaid Yield" of any share of Class L Common Stock means an amount equal ------------ to the excess, if any, of (a) the aggregate Yield accrued on such share, over (b) the aggregate amount of Distributions made by ChipPAC California that constitute payment of Yield on such share. "Unreturned Original Cost" of any share of Class L Common Stock means an ------------------------ amount equal to the excess, if any, of (a) the Original Cost of such share, over (b) the aggregate amount of Distributions made by ChipPAC California that constitute a return of the Original Cost of such share. "Yield" means, with respect to each outstanding share of Class L Common ----- Stock for each calendar quarter, the amount accruing on such share each day during such quarter at the rate of 12% per annum of the sum of (a) such share's Unreturned Original Cost, plus (b) Unpaid Yield thereon for all prior quarters. In calculating the amount of any Distribution to be made during a calendar quarter, the portion of a Class L Common Stock share's Yield for such portion of such quarter elapsing before such Distribution is made shall be taken into account. 3.4 Class A Preferred Stock. Upon the Effective Date of the Merger, each ----------------------- share of Class A Preferred Stock issued and outstanding immediately prior thereto shall, by virtue of the Merger and without any action by the Constituent Corporations, the holder of such shares or any other person, be changed and converted into and exchanged for one fully paid and nonassessable share of Class A Preferred Stock, $0.01 par value, of the Surviving Corporation ("ChipPAC ------- Delaware Class A Preferred Stock"). - -------------------------------- 4 3.5 Class B Preferred Stock. Upon the Effective Date of the Merger, each ----------------------- share of Class B Preferred Stock issued and outstanding immediately prior thereto shall, by virtue of the Merger and without any action by the Constituent Corporations, the holder of such shares or any other person, be changed and converted into and exchanged for one fully paid and nonassessable share of Class B Preferred Stock, $0.01 par value, of the Surviving Corporation ("ChipPAC ------- Delaware Class B Preferred Stock"). - -------------------------------- 3.6 Class C Preferred Stock. Upon the Effective Date of the Merger, each ----------------------- share of Class C Preferred Stock issued and outstanding immediately prior thereto shall, by virtue of the Merger and without any action by the Constituent Corporations, the holder of such shares or any other person, be changed and converted into and exchanged for one fully paid and nonassessable share of Class C Preferred Stock, $0.01 par value, of the Surviving Corporation ("ChipPAC ------- Delaware Class C Preferred Stock"). - -------------------------------- 3.7 Options. ------- (2) Upon the Effective Date of the Merger, the Surviving Corporation shall assume each Option and all employee benefit plans of ChipPAC California. Each outstanding and unexercised option or other right to purchase or security convertible into ChipPAC California Class A Common Stock shall become a like option or right to purchase or a security convertible into ChipPAC Delaware Common Stock on the basis of one share of ChipPAC Delaware Common Stock for each share of ChipPAC California Class A Common Stock issuable pursuant to any such option, stock purchase right or convertible security, on the same terms and conditions and at the exercise price per share equal to the exercise price applicable to any such ChipPAC California option, stock purchase right or convertible security at the Effective Date of the Merger. (3) A number of shares of ChipPAC Delaware Class A Common Stock shall be reserved for issuance upon the exercise of options, stock purchase rights or convertible securities equal to the number of shares of ChipPAC California Class A Common Stock so reserved immediately prior to the Effective Date of the Merger. 3.7 ChipPAC Delaware Common Stock. Upon the Effective Date of the Merger, ----------------------------- each share of common stock, $0.01 par value, of ChipPAC Delaware issued and outstanding immediately prior thereto shall, by virtue of the Merger and without any action by ChipPAC Delaware, the holder of such shares or any other person, be canceled and returned to the status of authorized but unissued shares. 3.8 Exchange of Certificates. ------------------------ 5 (4) After the Effective Date of the Merger, each holder of an outstanding certificate representing shares of Class A Common Stock, Class B Common Stock or Class L Common Stock may, at such stockholder's option, surrender the same for cancellation to a transfer agent to be designated by ChipPAC Delaware as exchange agent (the "Exchange Agent"), and each such -------------- holder shall be entitled to receive in exchange therefor a certificate or certificates representing the number of shares of ChipPAC Delaware Class A or Class B Common Stock into which such holders' shares of Class A Common Stock, Class B Common Stock or Class L Common Stock were converted as herein provided. Unless and until so surrendered, each outstanding certificate theretofore representing shares of Class A Common Stock, Class B Common Stock or Class L Common Stock shall be deemed for all purposes to represent the number of whole shares of ChipPAC Delaware Class A or Class B Common Stock in to which such shares of Class A Common Stock, Class B Common Stock or Class L Common Stock were converted in the Merger. (5) After the Effective Date of the Merger, each holder of an outstanding certificate representing shares of Class A Preferred Stock, Class B Preferred Stock or Class C Preferred Stock may, at such stockholder's option, surrender the same for cancellation to ChipPAC Delaware, and each such holder shall be entitled to receive in exchange therefor a certificate or certificates representing the number of shares of ChipPAC Delaware Class A Preferred Stock, ChipPAC Delaware Class B Preferred Stock or ChipPAC Delaware Class C Preferred Stock into which such holders' shares of Class A Preferred Stock, Class B Preferred Stock, or Class C Preferred Stock respectively, were converted as herein provided. Unless and until so surrendered, each outstanding certificate theretofore representing shares of Class A Preferred Stock or Class B Preferred Stock or Class C Preferred Stock shall be deemed for all purposes to represent the number of whole shares of ChipPAC Delaware Class A Preferred Stock, ChipPAC Delaware Class B Preferred Stock or ChipPAC Delaware Class C Preferred Stock in to which such shares of Class A Preferred Stock, Class B Preferred Stock or Class C Preferred Stock were converted in the Merger. (6) The registered owner on the books and records of the Surviving Corporation or the Exchange Agent of any shares of stock represented by such outstanding certificate shall, until such certificate shall have been surrendered for transfer or conversion or otherwise accounted for to the Surviving Corporation or the Exchange Agent, have and be entitled to exercise any voting and other rights with respect to and to receive dividends and other distributions upon the shares of ChipPAC Delaware Common Stock represented by such outstanding certificate as provided above. (7) Each certificate representing ChipPAC Delaware Common Stock ChipPAC Delaware Class A Preferred Stock, ChipPAC Delaware Class B Preferred Stock or ChipPAC Delaware Class C Preferred Stock so issued in the Merger shall bear the same legends, if any, with respect to the restrictions on transferability as the certificates of ChipPAC California so converted and given in exchange therefor, unless otherwise determined by the Board of Directors of the Surviving Corporation in compliance with applicable laws. 6 (8) If any certificate for shares of ChipPAC Delaware stock is to be issued in the name other than that in which the certificate surrendered in exchange therefor is registered, it shall be a condition of issuance thereof that the certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer, that such transfer otherwise be proper and that the person requesting such transfer pay to ChipPAC Delaware or the Exchange Agent any transfer or other taxes payable by reason of the issuance of such new certificate in the name other than that of the registered holder of the certificate surrendered or establish to the satisfaction of ChipPAC Delaware that such tax has been paid or is not payable. IV GENERAL 4.1 Further Assurances. From time to time, as and when required by ------------------ ChipPAC Delaware or by its successors or assigns, there shall be executed and delivered on behalf of ChipPAC California such deeds and other instruments and there shall be taken or caused to be taken by ChipPAC Delaware and ChipPAC California such further and other actions, as shall be appropriate or necessary in order to vest or perfect in or conform of record or otherwise by ChipPAC Delaware the title to and possession of all the property, interests, assets, rights, privileges, immunities, powers, franchises and authority of ChipPAC California and otherwise to carry out the purposes of this Agreement, and the officers and directors of ChipPAC Delaware are fully authorized in the name and on behalf of ChipPAC California or otherwise to take any and all such action and to execute and deliver any and all such deeds and other instruments. 4.2 Abandonment. At any time before the filing of this Agreement with the ----------- Secretary of State of the State of Delaware, this Agreement may be terminated and the Merger may be abandoned for any reason whatsoever by the Board of Directors of either ChipPAC California or ChipPAC Delaware, or both, notwithstanding the approval of this Agreement by the shareholders of ChipPAC California or by the sole stockholder of ChipPAC Delaware, or by both. 4.3 Amendment. The Boards of Directors of the Constituent Corporations --------- may amend this Agreement at any time prior to the filing of this Agreement (or certificate in lieu thereof) with the Secretary of State of Delaware, provided that an amendment made subsequent to the adoption of this Agreement by the stockholders of either Constituent Corporation shall not: (1) alter or change the amount or kind of shares, securities, cash, property and/or rights to be received in exchange for or on conversion of all or any of the shares of any class or series thereof of such Constituent Corporation (except for any alterations or changes relating to the authorization, adoption, issuance or conversion of the Class C Preferred Stock of ChipPAC Delaware or ChipPAC California), (2) alter or change any term of the Certificate of Incorporation of the Surviving Corporation to be effected by the Merger (except for any alterations or changes relating to the authorization, adoption, issuance or conversion of the Class C Preferred Stock of ChipPAC Delaware or ChipPAC California), or (3) alter or change any of the terms and conditions of this Agreement if such alteration or change would adversely affect the holders of any class of shares or series thereof of such Constituent Corporation. 7 4.4 Registered Office. The registered office of the Surviving Corporation ----------------- in the State of Delaware is located at The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware, County of New Castle, 19805, and The Corporation Trust Company is the registered agent of the Surviving Corporation at such address. 4.5 Agreement. Executed copies of this Agreement will be on file at the --------- principal place of business of the Surviving Corporation at 3151 Coronado Drive, Santa Clara, California 95054 and copies thereof will be furnished to any shareholder of either constituent Corporation, upon request and without cost. 4.6 Governing Law. This Agreement shall in all respects be construed, ------------- interpreted and enforced in accordance with and governed by the laws of the State of Delaware. 4.7 Counterparts. In order to facilitate the filing and recording of this ------------ Agreement, the same may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one an the same instrument. * * * 8 IN WITNESS WHEREOF, this Agreement and Plan of Merger, having first been approved by resolutions of the Boards of Directors of ChipPAC Delaware and ChipPAC California, is hereby executed on behalf of each of such two corporations and attested by their respective officers thereunto duly authorized. CHIPPAC, INC. a California corporation By: /s/ Dennis McKenna -------------------------- Its: President and Chief Executive Officer ATTEST: /s/ Robert Krakauer - -------------------------- Secretary CHIPPAC, INC. a Delaware corporation By: /s/ Dennis McKenna --------------------------- Its: President and Chief Executive Officer ATTEST: /s/ Robert Krakauer - -------------------------- Secretary S-1 EX-3.2 4 0004.txt AMENDED AND RESTATED BY-LAWS OF CHIPPAC, INC. Exhibit 3.2 BYLAWS OF CHIPPAC, INC. A Delaware Corporation ARTICLE I --------- OFFICES ------- Section 1. Registered Office. The registered office of ChipPAC, Inc. ---------- ----------------- (the "Corporation") in the State of Delaware shall be located at 1209 Orange ----------- Street, Wilmington, Delaware, County of New Castle 19805. The name of the Corporation's registered agent at such address shall be The Corporation Trust Company. The registered office and/or registered agent of the Corporation may be changed from time to time by action of the Board of Directors. Section 2. Other Offices. The Corporation may also have offices at such ---------- ------------- other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine or the business of the Corporation may require. ARTICLE II ---------- MEETINGS OF STOCKHOLDERS ------------------------ Section 1. Annual Meeting. An annual meeting of the stockholders shall ---------- -------------- be held each year within 150 days after the close of the immediately preceding fiscal year of the Corporation or at such other time specified by the Board of Directors for the purpose of electing Directors and conducting such other proper business as may come before the annual meeting. At the annual meeting, stockholders shall elect Directors and transact such other business as properly may be brought before the annual meeting pursuant to Section 11 of Article II hereof. Section 2. Special Meetings. Special meetings of the stockholders may ---------- ---------------- only be called in the manner provided in the Certificate of Incorporation. Section 3. Place of Meetings. The Board of Directors may designate any ---------- ----------------- place, either within or without the State of Delaware, as the place of meeting for any annual meeting or for any special meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the principal executive office of the Corporation. If for any reason any annual meeting shall not be held during any year, the business thereof may be transacted at any special meeting of the stockholders. Section 4. Notice. Whenever stockholders are required or permitted to ---------- ------ take action at a meeting, written or printed notice stating the place, date, time and, in the case of special meetings, the purpose or purposes, of such meeting, shall be given to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting. All such notices shall be delivered, either personally or by mail, by or at the direction of the Board of Directors, the chairman of the board, the president or the secretary, and if mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the Corporation. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Section 5. Stockholders List. The officer having charge of the stock ---------- ----------------- ledger of the Corporation shall make, at least 10 days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 6. Quorum. The holders of a majority of the outstanding shares of ---------- ------ capital stock entitled to vote, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders, except as otherwise provided by the General Corporation Law of the State of Delaware or by the Certificate of Incorporation. If a quorum is not present, the holders of a majority of the shares present in person or represented by proxy at the meeting, and entitled to vote at the meeting, may adjourn the meeting to another time and/or place. When a specified item of business requires a vote by a class or series (if the Corporation shall then have outstanding shares of more than one class or series) voting as a class or series, the holders of a majority of the shares of such class or series shall constitute a quorum (as to such class or series) for the transaction of such item of business. Section 7. Adjourned Meetings. When a meeting is adjourned to another ---------- ------------------ time and place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. -2- Section 8. Vote Required. When a quorum is present, the affirmative vote ---------- ------------- of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless (i) by express provisions of an applicable law or of the Certificate of Incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question, or (ii) the subject matter is the election of Directors, in which case Section 2 of Article III hereof shall govern and control the approval of such subject matter. Section 9. Voting Rights. Except as otherwise provided by the General ---------- ------------- Corporation Law of the State of Delaware, the Certificate of Incorporation of the Corporation or any amendments thereto or these Bylaws, every stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of capital stock held by such stockholder. Section 10. Proxies. Each stockholder entitled to vote at a meeting of ----------- ------- stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him or her by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally. Any proxy is suspended when the person executing the proxy is present at a meeting of stockholders and elects to vote, except that when such proxy is coupled with an interest and the fact of the interest appears on the face of the proxy, the agent named in the proxy shall have all voting and other rights referred to in the proxy, notwithstanding the presence of the person executing the proxy. At each meeting of the stockholders, and before any voting commences, all proxies filed at or before the meeting shall be submitted to and examined by the secretary or a person designated by the secretary, and no shares may be represented or voted under a proxy that has been found to be invalid or irregular. Section 11. Business Brought Before an Annual Meeting. At an annual ----------- ----------------------------------------- meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (ii) brought before the meeting by or at the direction of the Board of Directors or (iii) otherwise properly brought before the meeting by a stockholder. For business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the secretary of the Corporation. To be timely, a stockholder's notice must be delivered to or mailed and received at the principal executive offices of the Corporation, not less than 60 days nor more than 90 days prior to the meeting; provided, however, -------- ------- that in the event that less than 70 days' notice or prior public announcement of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received not later than the close of business on the 10th day following the date on which such notice of the date of the annual meeting was mailed or such public announcement was made. A stockholder's notice to the secretary shall set forth as to -3- each matter the stockholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the annual meeting, (ii) the name and address, as they appear on the Corporation's books, of the stockholder proposing such business, (iii) the class and number of shares of the Corporation which are beneficially owned by the stockholder and (iv) any material interest of the stockholder in such business. Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at an annual meeting except in accordance with the procedures set forth in this section. The presiding officer of an annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the provisions of this section; if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. For purposes of this section, "public announcement" shall mean disclosure in a press release reported ------------------- by Dow Jones News Service, Associated Press or a comparable national news service. Nothing in this section shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). ------------ ARTICLE III ----------- Directors --------- Section 1. General Powers. The business and affairs of the Corporation ---------- -------------- shall be managed by or under the direction of the Board of Directors. In addition to such powers as are herein and in the Certificate of Incorporation expressly conferred upon it, the Board of Directors shall have and may exercise all the powers of the Corporation, subject to the provisions of the laws of Delaware, the Certificate of Incorporation and these Bylaws. Section 2. Number, Election and Term of Office. Subject to any rights of ---------- ----------------------------------- the holders of any series of Preferred Stock to elect additional Directors under specified circumstances, the number of Directors which shall constitute the Board of Directors shall be fixed from time to time by resolution adopted by the affirmative vote of a majority of the total number of Directors then in office. The Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of Directors; provided that, whenever the holders of any class or series of capital stock of the Corporation are entitled to elect one or more Directors pursuant to the provisions of the Certificate of Incorporation of the Corporation (including, but not limited to, for purposes of these Bylaws, pursuant to any duly authorized certificate of designation), such Directors shall be elected by a plurality of the votes of such class or series present in person or represented by proxy at the meeting and entitled to vote in the election of such Directors. The Directors shall be elected and shall hold office only in the manner provided in the Certificate of Incorporation. Section 3. Removal and Resignation. No Director may be removed from ---------- ----------------------- office without cause and without the affirmative vote of the holders of a majority of the voting power of the then -4- outstanding shares of capital stock entitled to vote generally in the election of Directors voting together as a single class; provided, however, that if the -------- ------- holders of any class or series of capital stock are entitled by the provisions of the Certificate of Incorporation (it being understood that any references to the Certificate of Incorporation shall include any duly authorized certificate of designation) to elect one or more Directors, such Director or Directors so elected may be removed without cause only by the vote of the holders of a majority of the outstanding shares of that class or series entitled to vote. Any Director may resign at any time upon written notice to the Corporation. Section 4. Vacancies. Vacancies and newly created directorships resulting ---------- --------- from any increase in the total number of Directors may be filled only in the manner provided in the Certificate of Incorporation. Section 5. Nominations. ---------- ----------- (a) Only persons who are nominated in accordance with the procedures set forth in these Bylaws shall be eligible to serve as Directors. Nominations of persons for election to the Board of Directors of the Corporation may be made at a meeting of stockholders (i) by or at the direction of the Board of Directors or (ii) by any stockholder of the Corporation who was a stockholder of record at the time of giving of notice provided for in this Bylaw, who is entitled to vote generally in the election of Directors at the meeting and who shall have complied with the notice procedures set forth below in Section 5(b). (b) In order for a stockholder to nominate a person for election to the Board of Directors of the Corporation at a meeting of stockholders, such stockholder shall have delivered timely notice of such stockholder's intent to make such nomination in writing to the secretary of the Corporation. To be timely, a stockholder's notice shall be delivered to or mailed and received at the principal executive offices of the Corporation (i) in the case of an annual meeting, not less than 60 nor more than 90 days prior to the first anniversary of the preceding year's annual meeting; provided, however, that in the event -------- ------- that the date of the annual meeting is changed by more than 30 days from such anniversary date, notice by the stockholder to be timely must be so received not later than the close of business on the 10th day following the earlier of the day on which notice of the date of the meeting was mailed or public disclosure of the meeting was made, and (ii) in the case of a special meeting at which Directors are to be elected, not later than the close of business on the 10th day following the earlier of the day on which notice of the date of the meeting was mailed or public disclosure of the meeting was made. Such stockholder's notice shall set forth (i) as to each person whom the stockholder proposes to nominate for election as a Director at such meeting all information relating to such person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act (including such person's written consent to being named in the proxy statement as a nominee and to serving as a Director if elected); (ii) as to the stockholder giving the notice (A) the name and address, as they appear on the Corporation's books, of such stockholder and (B) the class and number of shares of the Corporation which are beneficially owned by such stockholder and also which are owned of record by such stockholder; and (iii) as to the beneficial owner, if any, on whose -5- behalf the nomination is made, (A) the name and address of such person and (B) the class and number of shares of the Corporation which are beneficially owned by such person. At the request of the Board of Directors, any person nominated by the Board of Directors for election as a Director shall furnish to the secretary of the Corporation that information required to be set forth in a stockholder's notice of nomination which pertains to the nominee. (c) No person shall be eligible to serve as a Director of the Corporation unless nominated in accordance with the procedures set forth in this section. The chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures prescribed by this section, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. A stockholder seeking to nominate a person to serve as a Director must also comply with all applicable requirements of the Exchange Act, and the rules and regulations thereunder with respect to the matters set forth in this section. Section 6. Annual Meetings. The annual meeting of the Board of Directors ---------- --------------- shall be held without other notice than this Bylaw immediately after, and at the same place as, the annual meeting of stockholders. Section 7. Other Meetings and Notice. Regular meetings, other than the ---------- ------------------------- annual meeting, of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by resolution of the Board of Directors. Special meetings of the Board of Directors may be called by the chairman of the board, the president (if the president is a Director) or, upon the written request of at least a majority of the Directors then in office, the secretary of the Corporation on at least 24 hours notice to each Director, either personally, by telephone, by mail or by telecopy. Section 8. Chairman of the Board, Quorum, Required Vote and Adjournment. ---------- ------------------------------------------------------------ The Board of Directors shall elect, by the affirmative vote of a majority of the total number of Directors then in office, a chairman of the board, who shall preside at all meetings of the stockholders and Board of Directors at which he or she is present and shall have such powers and perform such duties as the Board of Directors may from time to time prescribe. If the chairman of the board is not present at a meeting of the stockholders or the Board of Directors, the president (if the president is a Director and is not also the chairman of the board) shall preside at such meeting, and, if the president is not present at such meeting, a majority of the Directors present at such meeting shall elect one of their members to so preside. A majority of the total number of Directors then in office shall constitute a quorum for the transaction of business. Unless by express provision of an applicable law, the Certificate of Incorporation or these Bylaws a different vote is required, the vote of a majority of Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. -6- Section 9. Committees. The Board of Directors may, by resolution passed ---------- ---------- by a majority of the total number of Directors then in office, designate one or more committees, each committee to consist of one or more of the Directors of the Corporation, which to the extent provided in such resolution or these Bylaws shall have, and may exercise, the powers of the Board of Directors in the management and affairs of the Corporation, except as otherwise limited by law. The Board of Directors may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors upon request. Section 10. Committee Rules. Each committee of the Board of Directors may ----------- --------------- fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the Board of Directors designating such committee. Unless otherwise provided in such a resolution, the presence of at least a majority of the members of the committee shall be necessary to constitute a quorum. Unless otherwise provided in such a resolution, in the event that a member and that member's alternate, if alternates are designated by the Board of Directors, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Section 11. Communications Equipment. Members of the Board of Directors ----------- ------------------------ or any committee thereof may participate in and act at any meeting of such board or committee through the use of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear and speak with each other, and participation in the meeting pursuant to this section shall constitute presence in person at the meeting. Section 12. Waiver of Notice and Presumption of Assent. Any member of the ----------- ------------------------------------------ Board of Directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting except when such member attends for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to any member who voted in favor of such action. Section 13. Action by Written Consent. Unless otherwise restricted by the ----------- ------------------------- Certificate of Incorporation, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of such board or -7- committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. ARTICLE IV ---------- OFFICERS -------- Section 1. Number. The officers of the Corporation shall be elected by ---------- ------ the Board of Directors and shall consist of a chairman of the board, a chief executive officer, a president, one or more vice-presidents, a secretary, a chief financial officer and such other officers and assistant officers as may be deemed necessary or desirable by the Board of Directors. Any number of offices may be held by the same person, except that neither the chief executive officer nor the president shall also hold the office of secretary. In its discretion, the Board of Directors may choose not to fill any office for any period as it may deem advisable, except that the offices of president and secretary shall be filled as expeditiously as possible. Section 2. Election and Term of Office. The officers of the Corporation ---------- --------------------------- shall be elected annually by the Board of Directors at its first meeting held after each annual meeting of stockholders or as soon thereafter as convenient. Vacancies may be filled or new offices created and filled at any meeting of the Board of Directors. Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided. Section 3. Removal. Any officer or agent elected by the Board of ---------- ------- Directors may be removed by the Board of Directors at its discretion, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Section 4. Vacancies. Any vacancy occurring in any office because of ---------- --------- death, resignation, removal, disqualification or otherwise may be filled by the Board of Directors. Section 5. Compensation. Compensation of all executive officers shall be ---------- ------------ approved by the Board of Directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a Director of the Corporation; provided however, that compensation of all executive officers may -------- ------- be determined by a committee established for that purpose if so authorized by the unanimous vote of the Board of Directors. Section 6. Chairman of the Board. The chairman of the board shall preside ---------- --------------------- at all meetings of the stockholders and of the Board of Directors and shall have such other powers and perform such other duties as may be prescribed to him or her by the Board of Directors or provided in these By-laws. Section 7. Vice-Chairman of the Board. Whenever the chairman of the board ---------- -------------------------- is unable to serve, by reason of sickness, absence, or otherwise, the vice- chairman shall have the powers and perform the duties of the chairman of the board. The vice-chairman shall have such other powers -8- and perform such other duties as may be prescribed by the chairman of the board, the board of directors or these Bylaws. Section 8. Chief Executive Officer. The chief executive officer shall ---------- ----------------------- have the powers and perform the duties incident to that position. Subject to the powers of the Board of Directors and the chairman of the board, the chief executive officer shall be in the general and active charge of the entire business and affairs of the Corporation, and shall be its chief policy making officer. The chief executive officer shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or provided in these Bylaws. The chief executive officer is authorized to execute bonds, mortgages and other contracts requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Corporation. Whenever the president is unable to serve, by reason of sickness, absence or otherwise, the chief executive officer shall perform all the duties and responsibilities and exercise all the powers of the president. Section 9. The President. The president of the Corporation shall, subject --------- ------------- to the powers of the Board of Directors, the chairman of the board and the chief executive officer, have general charge of the business, affairs and property of the Corporation, and control over its officers, agents and employees. The president shall see that all orders and resolutions of the Board of Directors are carried into effect. The president is authorized to execute bonds, mortgages and other contracts requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Corporation. The president shall have such other powers and perform such other duties as may be prescribed by the chairman of the board, the chief executive officer, the Board of Directors or as may be provided in these Bylaws. Section 10. Vice-Presidents. The vice-president, or if there shall be ----------- --------------- more than one, the vice-presidents in the order determined by the Board of Directors or the chairman of the board, shall, in the absence or disability of the president, act with all of the powers and be subject to all the restrictions of the president. The vice-presidents shall also perform such other duties and have such other powers as the Board of Directors, the chairman of the board, the chief executive officer, the president or these Bylaws may, from time to time, prescribe. The vice-presidents may also be designated as executive vice- presidents or senior vice-presidents, as the Board of Directors may from time to time prescribe. Section 11. The Secretary and Assistant Secretaries. The secretary shall ----------- --------------------------------------- attend all meetings of the Board of Directors, all meetings of the committees thereof and all meetings of the stockholders and record all the proceedings of the meetings in a book or books to be kept for that purpose or shall ensure that his or her designee attends each such meeting to act in such capacity. Under the chairman of the board's supervision, the secretary shall give, or cause to be given, all notices required to be given by these Bylaws or by law; shall have such powers and perform such duties as the Board -9- of Directors, the chairman of the board, the chief executive officer, the president or these Bylaws may, from time to time, prescribe; and shall have custody of the corporate seal of the Corporation. The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her signature or by the signature of such assistant secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his or her signature. The assistant secretary, or if there be more than one, any of the assistant secretaries, shall in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the Board of Directors, the chairman of the board, the chief executive officer, the president or secretary may, from time to time, prescribe. Section 12. The Chief Financial Officer. The chief financial officer ----------- --------------------------- shall have the custody of the corporate funds and securities; shall keep full and accurate all books and accounts of the Corporation as shall be necessary or desirable in accordance with applicable law or generally accepted accounting principles; shall deposit all monies and other valuable effects in the name and to the credit of the Corporation as may be ordered by the chairman of the board or the Board of Directors; shall cause the funds of the Corporation to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements; and shall render to the Board of Directors, at its regular meeting or when the Board of Directors so requires, an account of the Corporation; shall have such powers and perform such duties as the Board of Directors, the chairman of the board, the chief executive officer, the president or these Bylaws may, from time to time, prescribe. If required by the Board of Directors, the chief financial officer shall give the Corporation a bond (which shall be rendered every six years) in such sums and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of the office of chief financial officer and for the restoration to the Corporation, in case of death, resignation, retirement or removal from office of all books, papers, vouchers, money and other property of whatever kind in the possession or under the control of the chief financial officer belonging to the Corporation. Section 13. Other Officers, Assistant Officers and Agents. Officers, ----------- --------------------------------------------- assistant officers and agents, if any, other than those whose duties are provided for in these Bylaws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the Board of Directors. Section 14. Absence or Disability of Officers. In the case of the absence ----------- --------------------------------- or disability of any officer of the Corporation and of any person hereby authorized to act in such officer's place during such officer's absence or disability, the Board of Directors may by resolution delegate the powers and duties of such officer to any other officer or to any Director, or to any other person selected by it. ARTICLE V --------- CERTIFICATES OF STOCK --------------------- -10- Section 1. Form. Every holder of stock in the Corporation shall be ---------- ---- entitled to have a certificate, signed by, or in the name of the Corporation by the chairman of the board, the chief executive officer or the president and the secretary or an assistant secretary of the Corporation, certifying the number of shares owned by such holder in the Corporation. If such a certificate is countersigned (i) by a transfer agent or an assistant transfer agent other than the Corporation or its employee or (ii) by a registrar, other than the Corporation or its employee, the signature of any such chairman of the board, chief executive officer, president, secretary or assistant secretary may be facsimiles. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on, any such certificate or certificates shall cease to be such officer or officers of the Corporation whether because of death, resignation or otherwise before such certificate or certificates have been delivered by the Corporation, such certificate or certificates may neverthe less be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile signature or signatures have been used thereon had not ceased to be such officer or officers of the Corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the Corporation. Shares of stock of the Corporation shall only be transferred on the books of the Corporation by the holder of record thereof or by such holder's attorney duly authorized in writing, upon surrender to the Corporation of the certificate or certificates for such shares endorsed by the appropriate person or persons, with such evidence of the authenticity of such endorsement, transfer, authorization and other matters as the Corporation may reasonably require, and accompanied by all necessary stock transfer stamps. In that event, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate or certificates and record the transaction on its books. The Board of Directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the Corporation. Section 2. Lost Certificates. The Board of Directors may direct a new ---------- ----------------- certificate or certificates to be issued in place of any certificate or certificates previously issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Corporation may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his or her legal representative, to give the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against the Corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate. Section 3. Fixing a Record Date for Stockholder Meetings. In order that ---------- --------------------------------------------- the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining -11- stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next day preceding the day on which notice is first given. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record -------- ------- date for the adjourned meeting. Section 4. Fixing a Record Date for Other Purposes. In order that the ---------- --------------------------------------- Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. Section 5. Registered Stockholders. Prior to the surrender to the ---------- ----------------------- Corporation of the certificate or certificates for a share or shares of stock with a request to record the transfer of such share or shares, the Corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications and otherwise to exercise all the rights and powers of an owner. The Corporation shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof. Section 6. Subscriptions for Stock. Unless otherwise provided for in the ---------- ----------------------- subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and at such times, as shall be determined by the Board of Directors. Any call made by the Board of Directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of the same series. In case of default in the payment of any installment or call when such payment is due, the Corporation may proceed to collect the amount due in the same manner as any debt due the Corporation. ARTICLE VI ---------- INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS ------------------------------------------------- Section 1. Nature of Indemnity. Each person who was or is made a party or ---------- ------------------- is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he, or a person of whom he is the legal representative, is or was a director or officer, of the corporation or is or was serving at the request of the corporation as a director, officer, employee, fiduciary, or agent of another corporation or of a partnership, joint venture, trust or other enterprise, shall be indemnified -12- and held harmless by the corporation to the fullest extent which it is empowered to do so unless prohibited from doing so by the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than said law permitted the corporation to provide prior to such amendment) against all expense, liability and loss (including attorneys' fees actually and reasonably incurred by such person in connection with such proceeding) and such indemnification shall inure to the benefit of his heirs, executors and administrators; provided, however, that, except as provided in Section 2 of this Article VI, the corporation shall indemnify any such person seeking indemnification in connection with a proceeding initiated by such person only if such proceeding was authorized by the board of directors of the corporation. The right to indemnification conferred in this Article VI shall be a contract right and, subject to Sections 2 and 5 of this Article VI, shall include the right to be paid by the corporation the expenses incurred in defending any such proceeding in advance of its final disposition. The corporation may, by action of its board of directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the foregoing indemnification of directors and officers. Section 2. Procedure for Indemnification of Directors and Officers. Any ---------- ------------------------------------------------------- indemnification of a director or officer of the corporation under Section 1 of this Article VI or advance of expenses under Section 5 of this Article VI shall be made promptly, and in any event within thirty (30) days, upon the written request of the director or officer. If a determination by the corporation that the director or officer is entitled to indemnification pursuant to this Article VI is required, and the corporation fails to respond within sixty (60) days to a written request for indemnity, the corporation shall be deemed to have approved the request. If the corporation denies a written request for indemnification or advancing of expenses, in whole or in part, or if payment in full pursuant to such request is not made within thirty (30) days, the right to indemnification or advances as granted by this Article VI shall be enforceable by the director or officer in any court of competent jurisdiction. Such person's costs and expenses incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such action shall also be indemnified by the corporation. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware for the corporation to indemnify the claimant for the amount claimed, but the burden of such defense shall be on the corporation. Neither the failure of the corporation (including its board of directors, independent legal counsel or it stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination by the corporation (including its board of directors, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. -13- Section 3. Article Not Exclusive. The rights to indemnification and the ---------- --------------------- payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Article VI shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of the certificate of incorporation, bylaw, agreement, vote of stockholders or disinterested directors or otherwise. Section 4. Insurance. The corporation may purchase and maintain insurance ---------- --------- on its own behalf and on behalf of any person who is or was a director, officer, employee, fiduciary or agent of the corporation or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the corporation would have the power to indemnify such person against such liability under this Article VI. Section 5. Expenses. Expenses incurred by any person described in Section ---------- -------- 1 of this Article VI in defending a proceeding shall be paid by the corporation in advance of such proceeding's final disposition unless otherwise determined by the board of directors in the specific case upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate. Section 6. Employees and Agents. Persons who are not covered by the ---------- -------------------- foregoing provisions of this Article VI and who are or were employees or agents of the corporation, or who are or were serving at the request of the corporation as employees or agents of another corporation, partnership, joint venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from time to time by the board of directors. Section 7. Contract Rights. The provisions of this Article VI shall be ---------- --------------- deemed to be a contract right between the corporation and each director or officer who serves in any such capacity at any time while this Article VI and the relevant provisions of the General Corporation Law of the State of Delaware or other applicable law are in effect, and any repeal or modification of this Article VI or any such law shall not affect any rights or obligations then existing with respect to any state of facts or proceeding then existing. Section 8. Merger or Consolidation. For purposes of this Article VI, ---------- ----------------------- references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article VI with respect -14- to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued. ARTICLE VII ----------- GENERAL PROVISIONS ------------------ Section 1. Dividends. Dividends upon the capital stock of the ---------- --------- Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, in accordance with applicable law. Dividends may be paid in cash, in property or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or any other purpose and the Directors may modify or abolish any such reserve in the manner in which it was created. Section 2. Checks, Drafts or Orders. All checks, drafts or other orders ---------- ------------------------ for the payment of money by or to the Corporation and all notes and other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or officers, agent or agents of the Corporation, and in such manner, as shall be determined by resolution of the Board of Directors or a duly authorized committee thereof. Section 3. Contracts. In addition to the powers otherwise granted to ---------- --------- officers pursuant to Article IV hereof, the Board of Directors may authorize any officer or officers, or any agent or agents, of the Corporation to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances. Section 4. Loans. The Corporation may lend money to, or guarantee any ---------- ----- obligation of, or otherwise assist any officer or other employee of the Corporation or of its subsidiaries, including any officer or employee who is a Director of the Corporation or its subsidiaries, whenever, in the judgment of the Directors, such loan, guaranty or assistance may reasonably be expected to benefit the Corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the Board of Directors shall approve, including, without limitation, a pledge of shares of stock of the Corporation. Nothing in this section shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the Corporation at common law or under any statute. Section 5. Fiscal Year. The fiscal year of the Corporation shall be fixed ---------- ----------- by resolution of the Board of Directors. -15- Section 6. Corporate Seal. The Board of Directors may provide a corporate ---------- -------------- seal which shall be in the form of a circle and shall have inscribed thereon the name of the Corporation and the words "Corporate Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. Section 7. Voting Securities Owned By Corporation. Voting securities in ---------- -------------------------------------- any other Corporation held by the Corporation shall be voted by the chief executive officer, the president or a vice-president, unless the Board of Directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer. Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution. Section 8. Inspection of Books and Records. The Board of Directors shall ---------- ------------------------------- have power from time to time to determine to what extent and at what times and places and under what conditions and regulations the accounts and books of the Corporation, or any of them, shall be open to the inspection of the stockholders; and no stockholder shall have any right to inspect any account or book or document of the Corporation, except as conferred by the laws of the State of Delaware, unless and until authorized so to do by resolution of the Board of Directors or of the stockholders of the Corporation. Section 9. Section Headings. Section headings in these Bylaws are for ---------- ---------------- convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein. Section 10. Inconsistent Provisions. In the event that any provision of ----------- ----------------------- these Bylaws is or becomes inconsistent with any provision of the Certificate of Incorporation, the General Corporation Law of the State of Delaware or any other applicable law, the provision of these Bylaws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect. ARTICLE VII ----------- AMENDMENTS ---------- In furtherance and not in limitation of the powers conferred by statute, the Board of Directors of the Corporation is expressly authorized to make, alter, amend, change, add to or repeal these Bylaws by the affirmative vote of a majority of the total number of Directors then in office. Any alteration or repeal of these Bylaws by the stockholders of the Corporation shall require the affirmative vote of a majority of the outstanding shares of the Corporation entitled to vote on such alteration or repeal; provided, however, that Section -------- ------- 11 of Article II and Sections 2, 3, 4 and 5 of Article III and this Article VIII of these Bylaws shall not be altered, amended or repealed and no provision inconsistent therewith shall be adopted without the affirmative vote of the holders of at least two -16- thirds (2/3) of the combined voting power of all of the then outstanding shares of the Corporation entitled to vote on such alteration or repeal unless such amendment shall be approved by a majority of the directors of the Corporation not affiliated or associated with any person or entity holding (or which has announced an intention to obtain) twenty percent (20%) or more of the voting power of the Corporation's outstanding capital stock (other than the Bain Group, as defined in the Corporation's Certificate of Incorporation). -17- EX-4.1 5 0005.txt SPECIMEN CERTIFICATE FOR CHIPPAC Exhibit 4.1 COMMON STOCK COMMON STOCK ChipPAC, Inc. THIS CERTIFICATE IS INCORPORATED UNDER THE SEE REVERSE FOR CERTAIN TRANSFERABLE IN MILWAUKEE, LAWS OF THE STATE OF DEFINITIONS WI OR NEW YORK, NY DELAWARE This Certifies that CUSP 169657 10 3 is the record holder of FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK, $.01 PAR VALUE, OF --------------------- CHIPPAC, INC.--------------------- transferable on the books of the Corporation by the holder hereof in person or by duly authorized attorney upon surrender of this Certificate properly endorsed. This Certificate is not valid until countersigned and registered by the Transfer Agent and Registrar. WITNESS the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers. Dated: ___________________________ [SEAL APPEARS HERE] __________________________ SENIOR VICE PRESIDENT, PRESIDENT AND CHIEF CHIEF FINANCIAL OFFICER EXECUTIVE OFFICER AND SECRETARY COUNTERSIGNED AND REGISTERED: FirstarBank, N.A. TRANSFER AGENT AND REGISTRAR BY ________________________ AUTHORIZED SIGNATURE CHIPPAC, INC. A statement of the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights as established, from time to time, by the Certificate of Incorporation of the Corporation and by any certificate of determination, the number of shares constituting each class and series, and the designations thereof, may be obtained by the holder hereof upon request and without charge at the principal office of the Corporation. The following abbreviations, when used in the inscription of the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common UNIF GIFT MIN ACT - _______ Custodian _______ TEN ENT - as tenants by the entireties (Cust) (Minor) JT TEN - as joint tenants with right of survivorship Under Uniform Gifts to Minors and not as tenants in common Act__________________________ (State) UNIF TRF MIN ACT - _______ Custodian (until age ___) _______ under Uniform Transfers (Minor) to Minors Act __________________ (State)
Additional abbreviations may also be used though not in the above list. FOR VALUE RECEIVED, ___________________________ hereby sell, assign and transfer unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE ______________________________ __________________________________________________________________________ (PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE) __________________________________________________________________________ ______________________________________________________________ Shares the common stock represented by the within Certificate, and do hereby irrevocably constitute and appoint _____________________________________________________________ Attorney to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises. Dated ________________________ X ______________________________ X ______________________________ NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. Signature(s) Guarantee By ______________________________________ THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15. EX-10.36 6 0006.txt PROMISSORY NOTE BETWEEN DENNIS MCKENNA AND CHIPPAC Exhibit 10.36 August 2, 2000 $1,250,000 PROMISSORY NOTE FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the order ----- of ChipPAC, Inc., a Delaware corporation ("Payee"), the aggregate principal sum ----- of One Million, Two Hundred Fifty Thousand Dollars ($1,250,000) (the "Principal --------- Amount") on the termination of Maker's employment with Payee (the "Maturity - ------ -------- Date") as more fully described in Section 6.2. - ---- 1. Payment Provisions. Maker covenants that so long as any amount ------------------ hereunder is outstanding: 1.1. Maturity. Upon the occurrence of the Maturity Date, or on any -------- accelerated maturity hereof, Maker will pay the entire principal amount of this Note then outstanding, together with all accrued and unpaid interest thereon. 1.2. Interest. Interest calculated daily on the basis of a 365-day -------- year on the entire Principal Amount from time to time unpaid through and including the maturity hereof shall accrue at a rate per annum equal to eight percent (8.0%) after the first anniversary of the date hereof. No interest shall accrue prior to the first anniversary hereof. Interest after maturity shall be payable at a rate of one percent (1%) per annum in excess of the rate payable hereunder prior to maturity. In no event shall the rate of interest hereunder exceed the maximum interest rate permitted by applicable law. 1.3. Voluntary Prepayments. Maker may at any time or from time to --------------------- time prepay all or any part of the principal amount of this Note, without premium or penalty. Any prepayment shall be accompanied by payment of the interest accrued on the prepaid amount. 1.4. Place of Payments. Payment shall be made in lawful money of the ----------------- United States of America at Payee's principal executive offices in California or at such other place as the holder hereof shall designate in writing to Maker. 2. Remedy. If a default shall have occurred and be continuing, Payee ------ shall thereafter have the right and remedy (to the extent permitted by applicable law), to demand, sue for or collect from Maker up to the entire Principal Amount plus all accrued and unpaid interest thereon, such right and remedy being exclusive. 3. Marshaling. Payee shall not be required to marshal any present or ---------- future security for (including but not limited to this Promissory Note), or other assurances of payment of, the amounts due hereunder, or to resort to such security or other assurances of payment in any particular order. All of Payee's rights hereunder and in respect of such security and other assurances of payment shall be cumulative and in addition to all other rights, however existing or arising. To the extent that he lawfully may, Maker hereby agrees that he will not invoke any law relating to the marshaling of collateral that might cause delay in or impede the enforcement of Payee's rights under this Promissory Note, and to the extent that he lawfully may, Maker hereby irrevocably waives the benefits of all such laws. 4. Maker's Obligations Not Affected. The obligations of Maker hereunder -------------------------------- shall remain in full force and effect without regard to and shall not be impaired b y (a) any exercise or nonexercise, or any waiver, by Payee of any right, remedy, power or privilege under or in respect of any of such obligations or any security thereof; (b) any amendment to or modification of this Promissory Note, or (c) the taking of additional security for, or any other assurances of payment of, any of such obligations or the release or discharge or termination of any security or other assurances of payment or performance for any of such obligations; whether or not Maker shall have notice or knowledge of any of the foregoing. 5. Further Assurances. Maker will do all such acts, and will furnish to ------------------ Payee all such financing statements, certificates, legal opinions and other documents and will obtain all such governmental consents and corporate approvals and will do or cause to be done all such other things as Payee may reasonably request from time to time in order to give full effect to this Promissory Note and to secure the rights of Payee hereunder, all without any cost or expense to Payee. If Payee so elects, a photocopy of this Promissory Note may at any time and from time to time be filed by Payee as a financing statement in any recording office in any jurisdiction. 6. Certain Events. -------------- 6.1. Bankruptcy, Insolvency, Etc. This Note shall become immediately ---------------------------- due and payable, without any demand, notice or other act on the part of Payee upon the entry of a decree or order by a court of competent jurisdiction adjudging Maker bankrupt or insolvent, or the institution of voluntary or involuntary proceedings to adjudge Maker bankrupt or insolvent. No failure by any holder hereof to take action with respect to any such event shall affect any right to take action with respect to the same or any other such event. 6.2. Termination of Maker's Employment. This Note shall become --------------------------------- immediately due and payable, without any demand, notice or other act on the part of Payee upon the termination of Maker's employment with Payee. 7. Notice, Etc. Any notice or other communication in connection with ------------ this Promissory Note shall be in writing and shall, except as otherwise provided herein, be deemed to have been duly given when (i) delivered by hand, (ii) sent by telecopier (with receipt confirmed), provided that a copy is mailed by certified mail, return receipt requested, or (iii) when received by the addressee, if sent by Express Mail, Federal Express or other express delivery service (receipt requested), in each case, at the appropriate addresses and telecopier numbers as set forth below: -2- If to Maker, to him at: Dennis McKenna 4535 Kingswood Drive Danville, California 94506 Telephone: (510) 736-2301 or at such other address he shall specify by notice actually received by the addressor. If to Payee, to it at: with a copy to: ChipPAC, Inc. Kirkland & Ellis 3151 Coronado Drive 777 South Figueroa Street Santa Clara, CA 95054 Los Angeles, CA 90017 Attn: Connie Fredrickson-Bray Attn: Eva Davis Telephone: (408) 486-5900 Telephone: (213) 680-8400 Telecopier: (408) 486-5914 Telecopier: (213) 680-8500 or at such other address or telecopier number as a party shall have specified by notice actually received by the addressor. 8. Miscellaneous. Maker and all endorsers hereby waive presentment, ------------- demand, notice, protest, and all other demands, notices and defenses (other than payment) in connection with delivery, acceptance, performance and enforcement of this Note except as specifically otherwise provided herein, assent to extensions of the time of payment or forbearance or other indulgence without notice and agree to pay all of each holder's costs of collection or enforcement, including without limitation attorney's fees and disbursements, to the extent allowed by law. * * * * -3- IN WITNESS WHEREOF, I have set my hand to this Promissory Note, under seal, this 2nd day of August, 2000. WITNESS: MAKER: /s/ Robert Krakauer /s/ Dennis McKenna - ------------------------------ ----------------------- Dennis McKenna S-1 EX-10.37 7 0007.txt PROMISSORY NOTE BETWEEN ROBERT KRAKAUER AND CHIPPA Exhibit 10.37 August 2, 2000 $250,000 PROMISSORY NOTE FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the order ----- of ChipPAC, Inc., a Delaware corporation ("Payee"), the aggregate principal sum ----- of Two Hundred Fifty Thousand Dollars ($250,000) (the "Principal Amount") on the ---------------- termination of Maker's employment with Payee (the "Maturity Date") as more ------------- fully described in Section 6.2. 1. Payment Provisions. Maker covenants that so long as any amount ------------------ hereunder is outstanding: 1.1. Maturity. Upon the occurrence of the Maturity Date, or on any -------- accelerated maturity hereof, Maker will pay the entire principal amount of this Note then outstanding, together with all accrued and unpaid interest thereon. 1.2. Interest. Interest calculated daily on the basis of a 365-day -------- year on the entire Principal Amount from time to time unpaid through and including the maturity hereof shall accrue at a rate per annum equal to eight percent (8.0%) after the first anniversary of the date hereof. No interest shall accrue prior to the first anniversary hereof. Interest after maturity shall be payable at a rate of one percent (1%) per annum in excess of the rate payable hereunder prior to maturity. In no event shall the rate of interest hereunder exceed the maximum interest rate permitted by applicable law. 1.3. Voluntary Prepayments. Maker may at any time or from time to --------------------- time prepay all or any part of the principal amount of this Note, without premium or penalty. Any prepayment shall be accompanied by payment of the interest accrued on the prepaid amount. 1.4. Place of Payments. Payment shall be made in lawful money of the ----------------- United States of America at Payee's principal executive offices in California or at such other place as the holder hereof shall designate in writing to Maker. 2. Remedy. If a default shall have occurred and be continuing, Payee ------ shall thereafter have the right and remedy (to the extent permitted by applicable law), to demand, sue for or collect from Maker up to the entire Principal Amount plus all accrued and unpaid interest thereon, such right and remedy being exclusive. 3. Marshaling. Payee shall not be required to marshal any present or ---------- future security for (including but not limited to this Promissory Note), or other assurances of payment of, the amounts due hereunder, or to resort to such security or other assurances of payment in any particular order. All of Payee's rights hereunder and in respect of such security and other assurances of payment shall be cumulative and in addition to all other rights, however existing or arising. To the extent that he lawfully may, Maker hereby agrees that he will not invoke any law relating to the marshaling of collateral that might cause delay in or impede the enforcement of Payee's rights under this Promissory Note, and to the extent that he lawfully may, Maker hereby irrevocably waives the benefits of all such laws. 4. Maker's Obligations Not Affected. The obligations of Maker hereunder -------------------------------- shall remain in full force and effect without regard to and shall not be impaired by (a) any exercise or nonexercise, or any waiver, by Payee of any right, remedy, power or privilege under or in respect of any of such obligations or any security thereof; (b) any amendment to or modification of this Promissory Note, or (c) the taking of additional security for, or any other assurances of payment of, any of such obligations or the release or discharge or termination of any security or other assurances of payment or performance for any of such obligations; whether or not Maker shall have notice or knowledge of any of the foregoing. 5. Further Assurances. Maker will do all such acts, and will furnish to ------------------ Payee all such financing statements, certificates, legal opinions and other documents and will obtain all such governmental consents and corporate approvals and will do or cause to be done all such other things as Payee may reasonably request from time to time in order to give full effect to this Promissory Note and to secure the rights of Payee hereunder, all without any cost or expense to Payee. If Payee so elects, a photocopy of this Promissory Note may at any time and from time to time be filed by Payee as a financing statement in any recording office in any jurisdiction. 6. Certain Events. -------------- 6.1. Bankruptcy, Insolvency, Etc. This Note shall become immediately ---------------------------- due and payable, without any demand, notice or other act on the part of Payee upon the entry of a decree or order by a court of competent jurisdiction adjudging Maker bankrupt or insolvent, or the institution of voluntary or involuntary proceedings to adjudge Maker bankrupt or insolvent. No failure by any holder hereof to take action with respect to any such event shall affect any right to take action with respect to the same or any other such event. 6.2. Termination of Maker's Employment. This Note shall become --------------------------------- immediately due and payable, without any demand, notice or other act on the part of Payee upon the termination of Maker's employment with Payee. 7. Notice, Etc. Any notice or other communication in connection with this ------------ Promissory Note shall be in writing and shall, except as otherwise provided herein, be deemed to have been duly given when (i) delivered by hand, (ii) sent by telecopier (with receipt confirmed), provided that a copy is mailed by certified mail, return receipt requested, or (iii) when received by the addressee, if sent by Express Mail, Federal Express or other express delivery service (receipt requested), in each case, at the appropriate addresses and telecopier numbers as set forth below: -2- If to Maker, to him at: Robert Krakauer 7851 Perry Lane Pleasanton, California 94588 Telephone: (925) 462-3783 or at such other address he shall specify by notice actually received by the addressor. If to Payee, to it at: with a copy to: ChipPAC, Inc. Kirkland & Ellis 3151 Coronado Drive 777 South Figueroa Street Santa Clara, CA 95054 Los Angeles, CA 90017 Attn: Connie Fredrickson-Bray Attn: Eva Davis Telephone: (408) 486-5900 Telephone: (213) 680-8400 Telecopier: (408) 486-5914 Telecopier: (213) 680-8500 or at such other address or telecopier number as a party shall have specified by notice actually received by the addressor. 8. Miscellaneous. Maker and all endorsers hereby waive presentment, ------------- demand, notice, protest, and all other demands, notices and defenses (other than payment) in connection with delivery, acceptance, performance and enforcement of this Note except as specifically otherwise provided herein, assent to extensions of the time of payment or forbearance or other indulgence without notice and agree to pay all of each holder's costs of collection or enforcement, including without limitation attorney's fees and disbursements, to the extent allowed by law. * * * * -3- IN WITNESS WHEREOF, I have set my hand to this Promissory Note, under seal, this 2nd day of August, 2000. WITNESS: MAKER: /s/ Dennis McKenna /s/ Robert Krakauer - ----------------------------- ----------------------- Robert Krakauer S-1 EX-10.38 8 0008.txt SUPPLEMENTAL AGREEMENT NO. 1 Exhibit 10.38 SUPPLEMENTAL AGREEMENT NO. 1 ---------------------------- to the ------ ADVISORY AGREEMENT ------------------ This Supplemental Agreement No. 1 (this "Supplemental Agreement") is entered into as of August 2, 2000 by and among ChipPAC, Inc., a Delaware corporation, ChipPAC Limited, a corporation incorporated under the laws of the Territory of the British Virgin Islands, ChipPAC International Company Limited, a corporation incorporated under the laws of the Territory of the British Virgin Islands (collectively, the "Companies") and Bain Capital, Inc., a Delaware corporation ("Bain") (collectively, the "Parties"), and hereby amends and supplements the Advisory Agreement (the "Advisory Agreement") entered into as of August 5, 1999 by and among the Parties. WHEREAS, pursuant to a Registration Statement on Form S-1 (Registration No. 333-39428) filed with the Securities and Exchange Commission on June 16, 2000, and as amended from time to time (the "Registration Statement"), the Company is preparing an initial public offering (the "Offering"); WHEREAS, the Parties have agreed that upon completion of the Offering, the Company will no longer need the services provided to it by Bain under the Advisory Agreement, and Bain will no longer need to provide such services; NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other goods and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows: 1. Early Termination. The Advisory Agreement shall terminate immediately upon the satisfaction or written waiver of all of the conditions listed in Section 2 below; provided however, that any obligations of the Companies owed under Sections 3 or 4 of the Advisory Agreement arising prior to the termination shall survive termination and Sections 6, 7, 8 and 12 of the Advisory Agreement shall survive termination of the Advisory Agreement. 2. Conditions. The Advisory Agreement shall terminate pursuant to Section 1 above, upon the satisfaction or written waiver of all of the following: a. Offering. The Offering shall have been consummated. b. Payment of Termination Fee. The Company shall have delivered to Bain, by wire transfer of immediately available funds to an account or accounts as Bain shall designate, an amount equal to $4 million (the "Termination Fee"). c. Payment of All Fees. The Company shall have delivered to Bain by wire transfer of immediately available funds to an account or accounts as Bain shall designate, or by any other method or form of payment as Bain approves, all and any amounts owed under Sections 3 or 4 of the Advisory Agreement as of and up until the date of the termination of the Advisory Agreement pursuant to Section 1, above. d. The Advisory Agreement between the Companies and SXI Group LLC shall have been terminated on terms identical to those contained in this Supplemental Agreement. 3. Notices. All notices hereunder shall be in writing and shall be delivered personally or mailed by United States mail, postage prepaid, addressed to the parties as follows: To the Companies, as appropriate: -------------------------------- ChipPAC, Inc. 3151 Coronado Drive Santa Clara, California 95054 Attention: Chief Executive Officer Facsimile: (408) 486-5914 ChipPAC Limited Road Town Tortola, British Virgin Islands Facsimile: (284) 494-3547 ChipPAC Operating Limited (Name to be changed to ChipPAC International Company Limited) Road Town Tortola, British Virgin Islands Facsimile: (284) 494-3547 To Bain: ------- Bain Capital II, Inc. One Embarcadero, Suite 2260 San Francisco, CA 94111 Facsimile: (415) 627-1333 Attention: David Dominik Prescott Ashe and --- c/o Bain Capital, Inc. Two Copley Place Boston, MA 20116 Facsimile: (617) 572-3274 Attention: Edward Conard 2 4. Assignment. None of the Companies may assign any obligations hereunder to any other party without the prior written consent of Bain (which consent shall not be unreasonably withheld), and Bain may not assign any obligations hereunder to any other party without the prior written consent of the Companies (which consent shall not be unreasonably withheld); provided that Bain may, without consent of the Companies, assign its rights and obligations under this Supplemental Agreement to any of its affiliates (but only if such affiliate is a person or entity (excluding any Bain portfolio companies) controlled by Bain, or in the case of an affiliate which is a partnership, only if Bain is the ultimate general partner of such partnership) or to Citicorp Venture Capital Ltd. The assignor shall remain liable for the performance of any assignee. 5. Successors. This Supplemental Agreement and all the obligations and benefits hereunder shall inure to the successors and assigns of the parties. 6. Counterparts. This Supplemental Agreement may be executed and delivered by each party hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original and all of which taken together shall constitute but one and the same agreement. 7. Entire Agreement; Modification; Governing Law. The terms and conditions hereof constitute the entire agreement between the parties hereto with respect to the subject matter of this Supplemental Agreement and supersede all previous communications, either oral or written, representations or warranties of any kind whatsoever, except as expressly set forth herein. No modifications of this Supplemental Agreement nor waiver of the terms or conditions thereof shall be binding upon either party unless approved in writing by any authorized representative of such party. All issues concerning this agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of New York. 8. Lapse. This Supplemental Agreement shall terminate and be of no force and effect if the conditions set forth in Section 2 have not been satisfied on or prior to December 31, 2000. * * * * * * * 3 IN WITNESS WHEREOF, each of the Parties have caused this Supplemental Agreement to be executed on its behalf as an instrument under seal as of the date first above written by its officer or representative thereunto duly authorized. CHIPPAC, INC. By /s/ Robert Krakauer ----------------------------------- Name (Please print): Rober Krakauer Title: Senior Vice President and Chief Financial Officer CHIPPAC LIMITED By /s/ Richard Parsons ------------------------------------ Name (Please print): Richard parsons Title: Director CHIPPAC INTERNATIONAL COMPANY LIMITED By /s/ Richard Parsons ------------------------------------- Name (Please print): Richard Parsons Title: Director BAIN CAPITAL, INC. By /s/ Edward Conard ------------------------------------- Name (Please print): Edward Conard Title: Managing Director S-1 EX-10.39 9 0009.txt SUPPLEMENTAL AGREEMENT NO. 1 Exhibit 10.39 SUPPLEMENTAL AGREEMENT NO. 1 ---------------------------- to the ------ ADVISORY AGREEMENT ------------------ This Supplemental Agreement No. 1 (this "Supplemental Agreement") is entered into as of August 2, 2000 by and among ChipPAC, Inc., a Delaware corporation, ChipPAC Limited, a corporation incorporated under the laws of the Territory of the British Virgin Islands, ChipPAC International Company Limited, a corporation incorporated under the laws of the Territory of the British Virgin Islands (collectively, the "Companies") and SXI Group LLC ("SXI") (collectively, the "Parties"), and hereby amends and supplements the Advisory Agreement (the "Advisory Agreement") entered into as of August 5, 1999 by and among the Parties. WHEREAS, pursuant to a Registration Statement on Form S-1 (Registration No. 333-39428) filed with the Securities and Exchange Commission on June 16, 2000, and as amended from time to time (the "Registration Statement"), the Company is preparing an initial public offering (the "Offering"); WHEREAS, the Parties have agreed that upon completion of the Offering, the Company will no longer need the services provided to it by SXI under the Advisory Agreement, and SXI will no longer need to provide such services; NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other goods and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows: 1. Early Termination. The Advisory Agreement shall terminate immediately upon the satisfaction or written waiver of all of the conditions listed in Section 2 below; provided however, that any obligations of the Companies owed under Sections 3 or 4 of the Advisory Agreement arising prior to the termination shall survive termination and Sections 6, 7, 8 and 12 of the Advisory Agreement shall survive termination. of the Advisory Agreement. 2. Conditions. The Advisory Agreement shall terminate pursuant to Section 1 above, upon the satisfaction or written waiver of all of the following: a. Offering. The Offering shall have been consummated. b. Payment of Termination Fee. The Company shall have delivered to SXI, by wire transfer of immediately available funds to an account or accounts as SXI shall designate, an amount equal to $4 million (the "Termination Fee"). c. Payment of All Fees. The Company shall have delivered to SXI by wire transfer of immediately available funds to an account or accounts as SXI shall designate, or by any other method or form of payment as SXI approves, all and any amounts owed under Sections 3 or 4 of the Advisory Agreement as of and up until the date of the termination of the Advisory Agreement pursuant to Section 1, above. d. The Advisory Agreement between the Companies and Bain Capital, Inc. shall have been terminated on terms identical to those contained in this Supplemental Agreement. 3. Notices. All notices hereunder shall be in writing and shall be delivered personally or mailed by United States mail, postage prepaid, addressed to the parties as follows: To the Companies, as appropriate: -------------------------------- ChipPAC, Inc. 3151 Coronado Drive Santa Clara, California 95054 Attention: Chief Executive Officer Facsimile: (408) 486-5914 ChipPAC Limited Road Town Tortola, British Virgin Islands Facsimile: (284) 494-3547 ChipPAC Operating Limited (Name to be changed to ChipPAC International Company Limited) Road Town Tortola, British Virgin Islands Facsimile: (284) 494-3547 To SXI: ------ c/o Citicorp Venture Capital, Ltd. 399 Park Avenue New York, New York 10043 U.S.A. Attention: Michael A. Delaney Paul C. Schorr IV Facsimile: (212) 888-2940 4. Assignment. None of the Companies may assign any obligations hereunder to any other party without the prior written consent of SXI (which consent shall not be unreasonably withheld), and SXI may not assign any obligations hereunder to any other party without the prior written consent of the Companies (which consent shall not be unreasonably withheld); provided that SXI may, without consent of the Companies, assign its rights and obligations under this Supplemental Agreement to any of its affiliates (but only if such affiliate is a person or entity (excluding any SXI portfolio 2 companies) controlled by SXI, or in the case of an affiliate which is a partnership, only if SXI is the ultimate general partner of such partnership) or to Citicorp Venture Capital Ltd. The assignor shall remain liable for the performance of any assignee. 5. Successors. This Supplemental Agreement and all the obligations and benefits hereunder shall inure to the successors and assigns of the parties. 6. Counterparts. This Supplemental Agreement may be executed and delivered by each party hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original and all of which taken together shall constitute but one and the same agreement. 7. Entire Agreement; Modification; Governing Law. The terms and conditions hereof constitute the entire agreement between the parties hereto with respect to the subject matter of this Supplemental Agreement and supersede all previous communications, either oral or written, representations or warranties of any kind whatsoever, except as expressly set forth herein. No modifications of this Supplemental Agreement nor waiver of the terms or conditions thereof shall be binding upon either party unless approved in writing by any authorized representative of such party. All issues concerning this agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of New York. 8. Lapse. This Supplemental Agreement shall terminate and be of no force and effect if the conditions set forth in Section 2 have not been satisfied on or prior to December 31, 2000. * * * * * * * 3 IN WITNESS WHEREOF, each of the Parties have caused this Supplemental Agreement to be executed on its behalf as an instrument under seal as of the date first above written by its officer or representative thereunto duly authorized. CHIPPAC, INC. By /s/ Robert Krakauer -------------------------------------- Name (Please print): Robert Krakauer Title: CHIPPAC LIMITED By /s/ Richard Parsons -------------------------------------- Name (Please print): Richard Parsons Title: Director CHIPPAC INTERNATIONAL COMPANY LIMITED By /s/ Richard Parsons -------------------------------------- Name (Please print): Richard Parsons Title: Director SXI GROUP LLC By /s/ Paul C. Schorr --------------------------------------- Name (Please print): Paul C. Schorr Title: Authorized Signatory S-1 -----END PRIVACY-ENHANCED MESSAGE-----