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Exhibit 4.41
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STATS CHIPPAC LTD.
(a
corporation organized under the laws of the Republic of
Singapore)
Senior Notes due 2011
PURCHASE AGREEMENT
Dated: November 5, 2004
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STATS CHIPPAC LTD.
(a
corporation organized under the laws of the Republic of
Singapore)
US$215,000,000
Senior Notes due 2011
PURCHASE AGREEMENT
November 5, 2004
Deutsche Bank AG, Singapore
Branch
5 Temasek Boulevard,
#10-01/02
Suntec Tower Five
Singapore, 038985
Lehman Brothers International
(Europe)
25 Bank Street
London E14 5LE
United Kingdom
Ladies and
Gentlemen:
STATS
ChipPac Ltd. (formerly known as ST Assembly Test Services Ltd),
a
corporation organized under
the laws of the Republic of Singapore (the
"COMPANY"), confirms its
agreement with Deutsche Bank AG, Singapore Branch
("DEUTSCHE BANK"), as lead
manager and joint book-running manager, and Lehman
Brothers International
(Europe) ("LEHMAN BROTHERS"), as joint book-running
manager, and each of the
other Initial Purchasers named in Schedule A hereto
(collectively, the "INITIAL
PURCHASERS", which term shall also include any
initial purchaser substituted
as hereinafter provided in Section 11 hereof), for
whom Deutsche Bank and Lehman
Brothers are acting as representatives (in such
capacity, the
"REPRESENTATIVES"), with respect to the issuance and sale by
the
Company and the purchase by
the Initial Purchasers, acting severally and not
jointly, of the respective
principal amounts set forth in said Schedule A of
US$215,000,000 aggregate
principal amount of the Company's 6.75% Senior Notes
due 2011 (the "SERIES A
NOTES"), subject to the terms and conditions set forth
in this purchase agreement
(this "AGREEMENT"). The Series A Notes are to be
issued pursuant to an
indenture dated as of the Closing Date (as defined
below)
(the "INDENTURE") between the
Company and U.S. Bank National Association, as
trustee (the "TRUSTEE"). The
Company's obligations under the Series A Notes,
including the due and
punctual payment of interest on the Series A Notes, will
be unconditionally guaranteed
(the "SUBSIDIARY GUARANTEES") by the subsidiaries
of the Company listed on
Schedule B hereto that have signed this Agreement (each
a "SUBSIDIARY
GUARANTOR"
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and, collectively, the
"SUBSIDIARY GUARANTORS") pursuant to an agreement (the
"SUBSIDIARY GUARANTEE
AGREEMENT"), dated as of the Closing Date, among each of
the Subsidiary Guarantors,
the Company and the Trustee. As used herein, the term
"SERIES A NOTES" shall
include the Subsidiary Guarantees thereof by the
Subsidiary Guarantors, unless
the context otherwise requires.
The offer
of the Series A Notes by the Initial Purchasers is herein
called
the "OFFERING". All
references to "U.S. DOLLARS" or "US$" herein are to
United
States dollars.
In
connection with the Offering, the Company has made a
listing
application to and approval
in-principle has been obtained from Singapore
Exchange Securities Trading
Limited (the "SGX-ST") for the listing on the SGX-ST
of the Notes (as defined
below).
The
Company understands that the Initial Purchasers propose to make
an
offering of the Series A
Notes on the terms and in the manner set forth herein
and agrees that the Initial
Purchasers may resell, subject to the conditions set
forth herein, all or a
portion of the Series A Notes to purchasers ("SUBSEQUENT
PURCHASERS") at any time
after this Agreement has been executed and delivered.
The Notes are to be offered
and sold through the Initial Purchasers without
being registered under the
United States Securities Act of 1933, as amended (the
"1933 ACT"), in reliance upon
exemptions therefrom. Pursuant to the terms of the
Series A Notes and the
Indenture, investors that acquire Series A Notes may
only
resell or otherwise transfer
such Series A Notes if such Series A Notes are
hereafter registered under
the 1933 Act or if an exemption from the registration
requirements of the 1933 Act
is available (including, without limitation, the
exemptions afforded by Rule
144A ("RULE 144A") or Regulation S ("REGULATION S")
of the rules and regulations
promulgated under the 1933 Act by the Securities
and Exchange Commission (the
"COMMISSION")).
Holders
(including subsequent transferees) of the Series A Notes will
have
the registration rights set
forth in the registration rights agreement (the
"REGISTRATION RIGHTS
AGREEMENT"), to be dated the Closing Date, for so long
as
such Series A Notes
constitute "TRANSFER RESTRICTED SECURITIES" (as defined
in
the Registration Rights
Agreement). Pursuant to the Registration Rights
Agreement, the Company and
the Subsidiary Guarantors will agree to file with the
Commission under the
circumstances set forth therein, (i) a registration
statement under the
Securities Act (the "EXCHANGE OFFER REGISTRATION
STATEMENT")
relating to (A) the Company's
6.75% Series B Senior Notes due 2011 (the "SERIES
B NOTES" and, together with
the Series A Notes, the "NOTES") and the Subsidiary
Guarantees of the Subsidiary
Guarantors with respect thereto to be offered in
exchange for the Series A
Notes and the related Subsidiary Guarantees (the
"EXCHANGE OFFER") and (ii)
under certain circumstances a shelf registration
statement pursuant to Rule
415 under the Securities Act (the "SHELF REGISTRATION
Statement" and, together with
the Exchange Offer Registration Statement, the
"REGISTRATION STATEMENTS")
relating to the resale by certain holders of Series A
Notes, and to use their
commercially reasonable efforts to cause such
Registration Statements to be
declared and remain effective and usable for the
periods specified in the
Offering Memorandum (as defined below) and the
Registration Rights Agreement
and to consummate the Exchange Offer.
The
Company has prepared and delivered to each Initial Purchaser copies
of
a preliminary offering
memorandum dated October 28, 2004 (the "PRELIMINARY
OFFERING
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MEMORANDUM") and has prepared
and will deliver to each Initial
Purchaser, no later than four
business days prior to the Closing Date, copies of
a final offering memorandum
dated November 5, 2004 (the "FINAL OFFERING
MEMORANDUM"), each for use by
such Initial Purchaser in connection with its
solicitation of purchases of,
or offering of, the Series A Notes. "OFFERING
MEMORANDUM" means, with
respect to any date or time referred to in this
Agreement, the most recent
offering memorandum (whether the Preliminary Offering
Memorandum or the Final
Offering Memorandum, or any amendment or supplement to
either such document),
including, without limitation, exhibits thereto and any
documents incorporated
therein by reference, which has been prepared and
delivered by the Company to
the Initial Purchasers in connection with their
solicitation of purchases of,
or offering of, the Series A Notes.
SECTION 1.
Representations and Warranties by the Company and the
Subsidiary
Guarantors.
(a)
Representations and Warranties. The Company and each
Subsidiary
Guarantor represents and
warrants to each Initial Purchaser as of the date
hereof and as of the Closing
Time referred to in Section 2(b) hereof, and agrees
with each Initial Purchaser,
as follows:
(i) Offering Memorandum. The Preliminary Offering Memorandum as
of
its date did not, and as of
the date hereof does not, and the Final Offering
Memorandum as of its date and
as of the Closing Time will not, include an untrue
statement of a material fact
or omit to state a material fact necessary in order
to make the statements
therein, in the light of the circumstances under which
they were made, not
misleading; provided that this representation, warranty
and
agreement shall not apply to
statements in or omissions from the Preliminary
Offering Memorandum or the
Final Offering Memorandum made in reliance upon and
in conformity with
information furnished to the Company and the Subsidiary
Guarantors in writing by any
Initial Purchaser expressly for use in the
Preliminary Offering
Memorandum or the Final Offering Memorandum. The
documents
incorporated or deemed to be
incorporated by reference in the Offering
Memorandum, at the time they
were or hereafter are filed with the Commission,
complied and will comply in
all material respects with the requirements of the
Securities Exchange Act of
1934, as amended (the "1934 ACT"), and the rules and
regulations of the Commission
thereunder.
(ii) Independent Accountants. The accountants who audited
the
financial statements included
in the Final Offering Memorandum are independent
public accountants with
respect to the Company and its Subsidiaries (as defined
below) within the meaning of
Regulation S-X under the 1933 Act.
(iii) Financial Statements. The consolidated financial statements
of
each of the Company and
ChipPAC, Inc., a Delaware corporation ("CHIPPAC"), and
their respective consolidated
subsidiaries, together with the applicable related
notes, included in the Final
Offering Memorandum present fairly the financial
position of each of the
Company and ChipPAC and their respective consolidated
subsidiaries at the dates
indicated and the statement of operations,
stockholders' equity and cash
flows of each of the Company and ChipPAC and their
respective consolidated
subsidiaries for the periods specified; said financial
statements have been prepared
in conformity with generally accepted accounting
principles ("GAAP") applied
on a consistent basis in the United States
throughout the periods
involved. The selected financial
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data and the summary
financial information included in the Final Offering
Memorandum present fairly in
all material respects the information shown therein
and have been compiled on a
basis consistent with that of the audited financial
statements included in the
Final Offering Memorandum. The pro forma condensed
combined consolidated
financial statements of the Company and its Subsidiaries
and the related notes thereto
included in the Offering Memorandum (A) present
fairly the information
contained therein, (B) except as disclosed in the
Offering Memorandum under the
heading "SEC Review," have been prepared in
accordance with the
Commission's rules and guidelines with respect to pro
forma
financial statements and (C)
have been properly presented on the bases described
therein, and the assumptions
used in the preparation thereof are reasonable and
the adjustments used therein
are appropriate to give effect to the transactions
and circumstances referred to
therein.
(iv) No Material Adverse Change in Business. Since the
respective
dates as of which information
is given in the Preliminary Offering Memorandum
and the Final Offering
Memorandum, except as otherwise stated therein, (A)
there
has been no material adverse
change in the condition, financial or otherwise, or
in the earnings, business
affairs or business prospects of the Company and its
Subsidiaries considered as
one enterprise, whether or not arising in the
ordinary course of business
(a "MATERIAL ADVERSE EFFECT"), (B) there have been
no transactions entered into
by the Company or any of its Subsidiaries, other
than those in the ordinary
course of business, which are material with respect
to the Company and its
Subsidiaries considered as one enterprise, and (C) there
has been no dividend or
distribution of any kind declared, paid or made by the
Company on any class of its
capital stock.
(v) Incorporation and Existence. The Company has been
duly
incorporated and is validly
existing as a corporation under the laws of the
Republic of Singapore. Each
of the Company's subsidiaries set forth on Schedule
C hereto (each a "SUBSIDIARY"
and collectively, the "SUBSIDIARIES") has been
duly organized and validly
exists as a corporation, partnership or limited
liability company in good
standing (to the extent such concept exists) under the
laws of its jurisdiction of
organization. The Company and each of the
Subsidiaries has all
requisite power and authority to own or lease, as the
case
may be, and to operate its
properties and to conduct its business as described
in the Final Offering
Memorandum; and the Company and each of the Subsidiaries
is duly qualified as a
foreign corporation or other entity to transact business
and is in good standing (to
the extent such concept exists) in each other
jurisdiction in which such
qualification is required, whether by reason of the
ownership or leasing of
property or the conduct of business, except where the
failure so to qualify or to
be in good standing would not result in a Material
Adverse Effect. Each of the
Subsidiaries of the Company is wholly-owned by the
Company, other than Winstek
Semiconductor Corporation, of which the Company owns
54.5% of the outstanding
capital stock thereof.
(vi) Subsidiaries. The Subsidiaries are the only subsidiaries of
the
Company within the meaning of
Rule 405 under the 1933 Act. Except for the
Subsidiaries, the Company
holds no material ownership or other interest, nominal
or beneficial, direct or
indirect, in any corporation, partnership, joint
venture or other business
entity. All of the issued shares of capital stock of
or other ownership interests
in each Subsidiary have been duly and validly
authorized and issued and are
fully paid and non-assessable and are owned
directly or indirectly by the
Company (except for Winstek Semiconductor
Corporation of which the
Company owns 54.5% of the outstanding capital stock
thereof) free and clear of
all liens, encumbrances, equities or
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claims, and no options,
warrants or other rights to purchase, agreements or
other obligations to issue or
other rights to convert any obligations into
shares of capital stock or
ownership interests in the Subsidiaries are
outstanding.
(vii) Capitalization. The authorized, issued and outstanding
equity
capitalization of the Company
is as set forth in the Final Offering Memorandum
in the column entitled "STATS
Actual" under the caption "Capitalization," and
after giving effect to the
consummation of the Tender Offer (as defined below),
the Offering and the use of
proceeds thereof as described in the Offering
Memorandum, would be as set
forth in the column entitled "As Adjusted" (in each
case, except for subsequent
issuances, if any, pursuant to reservations,
agreements or employee
benefit plans referred to in the Final Offering
Memorandum or pursuant to the
exercise of convertible securities or options
referred to in the Final
Offering Memorandum). The outstanding shares of capital
stock of the Company have
been duly authorized and validly issued and are fully
paid; none of the outstanding
shares of capital stock of the Company was issued
in violation of the
preemptive or other similar rights of any securityholder
of
the Company.
(viii) Authorization of Agreement. This Agreement has been
duly
authorized, executed and
delivered by the Company and each of the Subsidiary
Guarantors.
(ix) Authorization of the Indenture. The Indenture has been
duly
authorized by the Company
and, when executed and delivered by the Company
(assuming due authorization,
execution and delivery by the Trustee), will
constitute a valid and
binding agreement of the Company, enforceable against
the
Company in accordance with
its terms, except as the enforcement thereof may be
limited by bankruptcy,
insolvency (including, without limitation, all laws
relating to fraudulent
transfers), reorganization, moratorium or similar laws
affecting enforcement of
creditors' rights generally and except as enforcement
thereof is subject to general
principles of equity (regardless of whether
enforcement is considered in
a proceeding in equity or at law). No qualification
of the Indenture under the
Trust Indenture Act of 1939, as amended, and the
rules and regulations of the
Commission thereunder (the "TIA") is required in
connection with the offer and
sale of the Series A Notes contemplated hereby or
in connection with the
resales thereof by the Initial Purchasers. On the
Closing
Date, the Indenture will
conform in all material respects to the requirements of
the TIA and the rules and
regulations of the Commission thereunder applicable to
an indenture which is
required to be qualified thereunder.
(x) Authorization of the Series A Notes. The Series A Notes
have
been duly authorized and, at
the Closing Time, will have been duly executed by
the Company and, when
authenticated, issued and delivered in the manner
provided
for in the Indenture and
delivered against payment of the purchase price
therefor as provided in this
Agreement, will constitute valid and binding
obligations of the Company,
enforceable against the Company in accordance with
their terms, except as the
enforcement thereof may be limited by bankruptcy,
insolvency (including,
without limitation, all laws relating to fraudulent
transfers) reorganization,
moratorium or similar laws affecting enforcement of
creditors' rights generally
and except as enforcement thereof is subject to
general principles of equity
(regardless of whether enforcement is considered in
a proceeding in equity or at
law), and will be in the form contemplated by, and
entitled to the benefits of,
the Indenture.
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(xi) Authorization of the Subsidiary Guarantees. The
Subsidiary
Guarantees made by each
Subsidiary Guarantor pursuant to the Subsidiary
Guarantee Agreement have been
duly authorized and, at the Closing Time, will
have been duly executed by
each Subsidiary Guarantor and, when delivered and
upon the due execution,
authentication, and delivery of the Series A Notes in
the manner provided for in
the Indenture and the issuance of the Series A Notes
and the sale to the Initial
Purchasers contemplated by this Agreement, will have
been validly issued and
delivered, and will constitute the valid and binding
obligations of each of the
Subsidiary Guarantors, enforceable against each
Subsidiary Guarantor in
accordance with their terms, except as the enforcement
thereof may be limited by
bankruptcy, insolvency (including, without limitation,
all laws relating to
fraudulent transfers) reorganization, moratorium or
similar
laws affecting enforcement of
creditors' rights generally and except as
enforcement thereof is
subject to general principles of equity (regardless of
whether enforcement is
considered in a proceeding in equity or at law).
(xii) Authorization of the Series B Notes. The Series B Notes
will
be, prior to the Closing
Time, duly authorized by the Company and when duly and
validly issued and
authenticated in accordance with the terms of the
Indenture
and delivered in accordance
with the Exchange Offer provided for in the
Registration Rights
Agreement, will constitute valid and binding obligations
of
the Company, enforceable
against the Company in accordance with their terms,
except as the enforcement
thereof may be limited by bankruptcy, insolvency
(including, without
limitation, all laws relating to fraudulent transfers)
reorganization, moratorium or
similar laws affecting enforcement of creditors'
rights generally and except
as enforcement thereof is subject to general
principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at
law), and will be in the form contemplated by, and
entitled to the benefits of,
the Indenture.
(xiii) Authorization of the Registration Rights Agreement.
The
Registration Rights Agreement
will be, prior to the Closing Date, duly and
validly authorized by the
Company and each of the Subsidiary Guarantors and,
when executed by the Company
and the Subsidiary Guarantors in accordance with
the terms thereof, will be
validly executed and delivered and (assuming the due
execution and delivery
thereof by the Initial Purchasers) will constitute the
legal, valid and binding
obligation of the Company and the Subsidiary
Guarantors, enforceable
against the Company and the Subsidiary Guarantors in
accordance with its terms,
subject to the qualification that the enforceability
of the Company's and the
Subsidiary Guarantors' obligations thereunder may be
limited by bankruptcy,
fraudulent transfer, insolvency, reorganization,
moratorium and other laws
relating to or affecting creditors' rights generally
and by general equitable
principles (regardless of whether such enforceability
is considered in a proceeding
in equity or at law) and except as may be limited
by state or federal laws or
policies relating to the non-enforceability of the
indemnification provisions
contained therein.
(xiv) Description of Certain Documents. The Series A Notes,
the
Series B Notes, the
Subsidiary Guarantees, the Indenture and the
Registration
Rights Agreement will conform
in all material respects to the respective
statements relating thereto
contained in the Final Offering Memorandum.
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(xv) Absence of Defaults and Conflicts. (i) None of the Company
or
any Subsidiary is in
violation of its charter, by-laws, certificate of
formation, limited liability
company or operating agreement, partnership
agreement or other
organizational documents, as applicable, (ii) none of
the
Company or any of its
Subsidiaries is in default in the performance or
observance of any obligation,
agreement, covenant or condition contained in any
contract, indenture,
mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or
instrument to which the Company or any of its
Subsidiaries is a party or by
which or any of them may be bound, or to which any
of the property or assets of
the Company or any of its Subsidiaries is subject
(collectively, "AGREEMENTS
AND INSTRUMENTS") except for such defaults that would
not result in a Material
Adverse Effect, and (iii) the execution, delivery and
performance of this
Agreement, the Indenture, the Series A Notes, the Series
B
Notes, the Subsidiary
Guarantee Agreement and the Registration Rights
Agreement
and any other agreement or
instrument entered into or issued or to be entered
into or issued by the Company
or the Subsidiary Guarantors in connection with
the transactions contemplated
hereby or thereby or in the Final Offering
Memorandum and the
consummation of the transactions contemplated herein and
in
the Final Offering Memorandum
(including, without limitation, the issuance and
sale of the Series A Notes,
the consummation of the merger of Camelot Merger,
Inc., a wholly owned
subsidiary of the Company, with and into ChipPAC as
described in the Final
Offering Memorandum (the "MERGER"), the use of the
proceeds from the sale of the
Series A Notes as described in the Final Offering
Memorandum under the caption
"Use of Proceeds" and the consummation of the
tender offer for all of the
12 3/4% Senior Subordinated Notes due 2009 of
ChipPAC International Company
Limited as described in the Final Offering
Memorandum (the "TENDER
OFFER")) and compliance by the Company and the
Subsidiary Guarantors with
their obligations hereunder have been duly authorized
by all necessary corporate or
other organizational action, as applicable, and do
not and will not, whether
with or without the giving of notice or passage of
time or both, conflict with
or constitute a breach of, or default or result in
the occurrence and
continuance of a Repayment Event (as defined below) under,
or
result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the
Company or any of its Subsidiaries pursuant to, the
Agreements and Instruments
except for such conflicts, breaches or defaults or
liens, charges or
encumbrances that, singly or in the aggregate, would not
result in a Material Adverse
Effect, nor will such action result in (x) any
violation of the provisions
of the charter, by-laws, certificate of formation,
limited liability company or
operating agreement, partnership agreement or other
organizational document of
the Company or the Subsidies, as applicable or (y)
any applicable law, statute,
rule, regulation, judgment, order, writ or decree
of any government, government
instrumentality or court, domestic or foreign,
having jurisdiction over the
Company or any of its Subsidiaries or any of their
assets, properties or
operations except, with respect to Clause (y), for such
actions that would not have a
Material Adverse Effect. As used herein, a
"REPAYMENT EVENT" means any
event or condition which gives the holder of any
note, debenture or other
evidence of indebtedness (or any person acting on such
holder's behalf) the right to
require the repurchase, redemption or repayment of
all or a portion of such
indebtedness by the Company or any of its Subsidiaries
prior to the stated maturity
of such indebtedness.
(xvi) Absence of Proceedings. There is no action, suit,
proceeding,
inquiry or investigation
before or brought by any court or governmental agency
or body, domestic or foreign,
now pending, or, to the knowledge of the Company
or any Subsidiary Guarantor,
threatened, against or affecting the Company or any
of its Subsidiaries which
might reasonably
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be expected to result in a
Material Adverse Effect, or which might reasonably be
expected to materially and
adversely affect the properties or assets of the
Company or any of its
Subsidiaries or the consummation of the transactions
contemplated by this
Agreement (including without limitation the Tender
Offer)
or the performance by the
Company or the Subsidiary Guarantors of their
obligations
hereunder.
(xvii) Possession of Intellectual Property. To the best knowledge
of
the Company and each
Subsidiary Guarantor, the Company and its Subsidiaries
own
or possess adequate patents,
patent rights, licenses, inventions, copyrights,
know-how (including, without
limitation, trade secrets and other unpatented
and/or unpatentable
proprietary or confidential information, systems or
procedures), trademarks,
service marks, trade names or other intellectual
property (collectively,
"INTELLECTUAL PROPERTY") necessary to carry on the
business as now operated by
them, except where the failure to so own, possess or
have such or other rights
would not have a Material Adverse Effect, and, except
as described in the Final
Offering Memorandum, none of the Company or any of its
Subsidiaries has received any
notice or is otherwise aware of any infringement
of or conflict with asserted
rights of others with respect to any Intellectual
Property or of any facts or
circumstances which would render any Intellectual
Property invalid or
inadequate to protect the interest of the Company or any
of
its Subsidiaries therein, and
which infringement or conflict (if the subject of
any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly
or in the aggregate, would
result in a Material Adverse Effect.
(xviii) Tax Consequences. No taxes, imposts or duties of any
nature
(including, without
limitation, stamp or other issuance or transfer taxes or
duties and capital gains,
income, withholding or other taxes) are payable by or
on behalf of the Initial
Purchasers to the Singapore government or the
jurisdiction in which any
Subsidiary Guarantor is located or, in each case, any
political subdivision or
taxing authority thereof or therein in connection with
(A) the execution and
delivery of this Agreement, (B) the issuance of the
Series
A Notes by the Company in
connection with the Offering, (C) the sale and
delivery of the Series A
Notes by the Company to the Initial Purchasers in the
manner contemplated in this
Agreement, or (D) except as disclosed in the Final
Offering Memorandum under the
heading "Taxation -- Singapore Taxation", the
resale and delivery of such
Series A Notes by the Initial Purchasers in the
manner contemplated in the
Final Offering Memorandum.
(xix) Payments without
Withholding. Except as described in the Final
Offering Memorandum, all
payments on the Notes or under the Subsidiary
Guarantees will be made by
the Company or the Subsidiary Guarantor without
withholding or deduction for
or on account of any and all taxes, duties or other
charges or whatsoever nature
(including, without limitation, income taxes)
imposed by Singapore or the
jurisdiction in which any Subsidiary Guarantor is
located or, in each case, any
political subdivision or taxing authority thereof
or therein.
(xx) Absence of Further Requirements. No filing with, or
authorization, approval,
consent, license, order, registration, qualification or
decree of, any court or
governmental authority or agency is necessary or
required under Singapore law,
the law of the jurisdiction of incorporation or
organization of each of the
Subsidiary Guarantors or United States federal law
or the laws of any state or
political subdivision thereof in connection with the
consummation by the Company
and the Subsidiary Guarantors, as applicable, of the
Tender Offer or the
transactions contemplated by this Agreement, the
Indenture
and the
Registration
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Rights Agreement except (A)
such as have been obtained under the Singapore
Securities and Futures Act,
(B) such as may be required by the Governor of the
Bank of Korea in connection
with the approval of the Subsidiary Guarantee of the
Notes by STATS ChipPAC Korea
Ltd., (C) such as may be required by the Central
Bank of Malaysia in
connection with the registration of the Subsidiary
Guarantee
of the Notes by STATS ChipPAC
Malaysia Sdn. Bhd., (D) such as may be required
under the blue sky or similar
laws of any jurisdiction in connection with the
purchase and distribution of
the Series A Notes by the Initial Purchasers in the
manner contemplated in this
Agreement and the Final Offering Memorandum, (E)
such as may be required
pursuant to the National Association of Securities
Dealers, Inc. rules, (F) such
as may be required by the SGX-ST in connection
with its granting approval
in-principle for the listing and quotation of the
Notes, when such approval is
obtained, (G) the submission of the Returns on Debt
Securities in respect of the
Series A Notes and the Series B Notes to the
Monetary Authority of
Singapore (the "MAS") and the Inland Revenue Authority
of
Singapore by Deutsche Bank
and the Company and (H) except such as have been
already obtained or may be
required under the 1933 Act in connection with the
Company's and the Subsidiary
Guarantors' obligations under the Registration
Rights Agreement.
(xxi) Possession of Licenses and Permits. The Company and
each
Subsidiary possess such
permits, licenses, approvals, consents and other
authorizations (collectively,
"GOVERNMENTAL LICENSES") issued by the appropriate
federal, state, local or
foreign regulatory agencies or bodies necessary to
conduct the business now
operated by it and described in the Final Offering
Memorandum, except where the
failure to have such Governmental Licenses would
not result in a Material
Adverse Effect, and none of the Company or any
Subsidiary has received any
notice of proceedings relating to the revocation or
modification of any such
Governmental Licenses which, singly or in the
aggregate, if the subject of
an unfavorable decision, ruling or finding, would
result in a Material Adverse
Effect.
(xxii) Title to Property. The Company and each of its
Subsidiaries
owns or leases all such
properties as are necessary to the conduct of its
operations as presently
conducted.
(xxiii) Environmental Laws. Except as set forth in the
Final
Offering Memorandum or for
such matters as would not, singly or in the
aggregate, result in a
Material Adverse Effect, (A) none of the Company or any
of its Subsidiaries is in
violation of any federal, state, local or foreign
statute, law, rule,
regulation, ordinance, code, policy or rule of common law
or
any judicial or
administrative interpretation thereof, including,
without
limitation, any judicial or
administrative order, consent, decree or judgment,
relating to pollution or
protection of human health, the environment (including,
without limitation, ambient
air, surface water, groundwater, land surface or
subsurface strata) or
wildlife, including, without limitation, laws and
regulations relating to the
release or threatened release of chemicals,
pollutants, contaminants,
wastes, toxic substances, hazardous substances,
petroleum or petroleum
products (collectively, "HAZARDOUS MATERIALS") or to the
manufacture, processing,
distribution, use, treatment, storage, disposal,
transport or handling of
Hazardous Materials (collectively, "ENVIRONMENTAL
LAWS"), (B) the Company and
its Subsidiaries have all permits, authorizations
and approvals required under
any applicable Environmental Laws to conduct their
businesses and are each in
compliance with their requirements and (C) the
Company and its Subsidiaries
have not received notice of any pending or
threatened administrative,
regulatory or judicial actions, suits, demands,
demand letters, claims,
liens, notices of noncompliance or violation,
9
<PAGE>
investigation or proceedings
relating to any Environmental Law against the
Company or any of its
Subsidiaries.
(xxiv) Singaporean Residency. Initial Purchasers of the Series
A
Notes and non-Singaporean
parties to this Agreement, the Registration Rights
Agreement and the Indenture
will not be deemed resident, domiciled, carrying on
business or subject to
taxation in the Republic of Singapore solely by reason
of
the execution, delivery,
performance or enforcement of this Agreement or any
document to be furnished
hereunder and no holder of the Notes will be deemed to
be a resident or domiciled in
Singapore solely by reason of holding such Notes.
(xxv) Senior Unsecured Obligations. The obligations of the
Company
under the Indenture and the
Notes issued thereunder are and shall at all times
be general senior unsecured
obligations of the Company, ranking pari passu in
right of payment with all
other existing and future unsecured and unsubordinated
Indebtedness of the Company
outstanding from time to time (other than
obligations preferred by
statute or operation of law).
(xxvi) Undisclosed
Liabilities. There are (i) no liabilities of the
Company or any of its
consolidated subsidiaries of any kind whatsoever,
whether
accrued, contingent,
absolute, determined, determinable or otherwise, and
(ii)
no existing situations or set
of circumstances that would reasonably be expected
to result in such a
liability, other than (x) liabilities set forth in the
Final
Offering Memorandum, or (y)
other undisclosed liabilities which would not,
singly or in the aggregate,
result in a Material Adverse Effect.
(xxvii) Sovereign Immunity. None of the Company, any of
its
Subsidiaries or any of their
properties has any sovereign immunity from
jurisdiction or suit of any
court or from set-off or from any legal process or
remedy (whether through
service, notice, attachment prior to judgment,
attachment in aid of
execution, execution or otherwise) under the laws of the
Republic of
Singapore.
(xxviii) Accounting Controls. The Company and its
consolidated
subsidiaries maintain a
system of internal accounting controls sufficient to
provide reasonable assurance
that transactions are executed in accordance with
management's general or
specific authorizations; transactions are recorded as
necessary to permit
preparation of financial statements in conformity with
GAAP
and to maintain asset
accountability; access to assets is permitted only in
accordance with management's
general or specific authorization; and the recorded
accountability for assets is
compared with the existing assets at reasonable
intervals and appropriate
action is taken with respect to any differences.
(xxix) Disclosure Controls and Procedures. The chief
executive
officer and chief financial
officer of the Company are responsible for
establishing and maintaining
disclosure controls and procedures (as defined in
Rules 13a-15(e) and 15d-15(e)
of the rules and regulations of the Commission
under the 1934 Act) for the
Company and have (i) designed such disclosure
controls and procedures, or
caused such disclosure controls and procedures to be
designed under their
supervision, to ensure that material information
relating
to the Company and its
Subsidiaries is made known to the chief executive
officer
and chief financial officer
by others within the Company and its Subsidiaries,
particularly during the end
of the period (the "EVALUATION DATE") covered by the
most recent annual report of
the Company (a "REPORT") and
10
<PAGE>
(ii) evaluated the
effectiveness of the Company's disclosure controls and
procedures and presented in
each Report their conclusions about the
effectiveness of the
disclosure controls and procedures as of the Evaluation
Date covered by each Report
based on such evaluation. The chief executive
officer and chief financial
officer of the Company have disclosed, based upon
their most recent evaluation
of the internal controls over financial reporting,
to the Company's auditors and
the Audit Committee of the Company's Board of
Directors (a) all significant
deficiencies and material weaknesses in the design
or operation of internal
controls over financial reporting which are reasonably
likely to adversely affect
the Company's ability to record, process, summarize
and report financial
information, and (b) any fraud, whether or not material,
that involves management or
other employees who have a significant role in the
Company's internal controls
over financial reporting.
(xxx) Investment Company Act. None of the Company or any
Subsidiary
is, and upon the issuance and
sale of the Series A Notes as herein contemplated
and the application of the
net proceeds therefrom as described in the Final
Offering Memorandum will not
be, an "investment company" as defined in the
Investment Company Act of
1940, as amended (the "1940 ACT").
(xxxi) Similar Offerings. None of the Company or any of
its
Affiliates, as such term is
defined in Rule 501(b) under the 1933 Act (each, an
"AFFILIATE"), has, directly
or indirectly, solicited any offer to buy, sold or
offered to sell or otherwise
negotiated in respect of, or will solicit any offer
to buy, sell or offer to sell
or otherwise negotiate in respect of, in the
United States or to any
United States citizen or resident, any security which is
or would be integrated with
the sale of the Series A Notes in a manner that
would require the Series A
Notes to be registered under the 1933 Act.
(xxxii) Rule 144A Eligibility. The Series A Notes are eligible
for
resale pursuant to Rule 144A
and will not be, at the Closing Time, of the same
class as securities listed on
a national securities exchange registered under
Section 6 of the 1934 Act, or
quoted in a U.S. automated interdealer quotation
system.
(xxxiii) No General Solicitation. None of the Company or
the
Subsidiaries, their
Affiliates or any person acting on its or their behalf
(other than the Initial
Purchasers, as to whom the Company makes no
representation) has engaged
or will engage, in connection with the offering of
the Series A Notes, in any
form of general solicitation or general advertising
within the meaning of Rule
502(c) under the 1933 Act.
(xxxiv) No Stabilization or Manipulation. None of the Company or
the
Subsidiaries, their
Affiliates or any person acting on its or their behalf,
has
taken or will take, directly
or indirectly, any action for the purpose of
stabilizing or manipulating
the price of any security to facilitate the sale or
resale of the Notes in
violation of any applicable law, provided, however, that
this provision shall not
apply to any trading or stabilization activities
conducted by the Initial
Purchasers.
(xxxv) No Registration Required. Subject to compliance by
the
Initial Purchasers with the
representations and warranties set forth in Section
2 and the procedures set
forth in Section 6 hereof, it is not necessary in
connection with the offer,
sale and delivery of the
11
<PAGE>
Series A Notes to the Initial
Purchasers and to each Subsequent Purchaser in the
manner contemplated by this
Agreement and the Final Offering Memorandum to
register the Series A Notes
under the 1933 Act or to qualify the Indenture under
the TIA.
(xxxvi) No Directed Selling Efforts. With respect to those Series
A
Notes sold in reliance on
Regulation S, (A) none of the Company or the
Subsidiaries, their
Affiliates or any person acting on its or their behalf
(other than the Initial
Purchasers, as to whom the Company and the Subsidiary
Guarantors make no
representation) has engaged or will engage in any
directed
selling efforts within the
meaning of Regulation S and (B) each of the Company,
the Subsidiaries and their
Affiliates and any person acting on its or their
behalf (other than the
Initial Purchasers, as to whom the Company and the
Subsidiary Guarantors make no
representation) has complied with and will comply
with the offering
restrictions requirement of Regulation S.
(xxxvii) Reporting Company. The Company is subject to the
reporting
requirements of Section 13 or
Section 15(d) of the 1934 Act. (xxxviii) Foreign
Private Issuer. The Company
is a "foreign private issuer" as defined in Rule 405
under the Securities
Act.
(xxxviii) Foreign Private Issuer. The Company is a "foreign
private
issuer" as defined in Rule
405 under the Securities Act.
(xxxix) Passive Foreign Investment Company. The Company is not
a
Passive Foreign Investment
Company ("PFIC") within the meaning of Section 1297
of the United States Internal
Revenue Code of 1986, as amended, and does not
expect to become a PFIC in
the future.
(xl) ERISA Compliance. (a) The Company, its Subsidiaries and
"ERISA
Affiliates" (as defined
below) and any "employee benefit plan" (as defined under
the Employee Retirement
Income Security Act of 1974, as amended, and the
regulations and published
interpretations thereunder (collectively, "ERISA"),
excluding any Foreign Plans
(as defined below)) established or maintained by the
Company, its Subsidiaries or
any ERISA Affiliate are in compliance with all
applicable laws, including
ERISA and the Code (as defined below) except as would
not reasonably be expected to
result in a Material Adverse Effect. "ERISA
AFFILIATE" means, with
respect to the Company or its Subsidiaries, any member
of
any group of organizations
described in Sections 414(b), (c), (m) or (o) of the
Internal Revenue Code of
1986, as amended, and the regulations and published
interpretations thereunder
(the "CODE") of which the Company or such Subsidiary
is a member. No "reportable
event" (as defined under Section 4043 of ERISA) has
occurred or is reasonably
expected to occur with respect to any "employee
benefit plan" subject to
Title IV of ERISA established or maintained by the
Company, its Subsidiaries or
any ERISA Affiliate, except as would not,
individually or in the
aggregate, reasonably be expected to result in a
Material
Adverse Effect. No "employee
benefit plan" subject to Title IV of ERISA
established or maintained by
the Company, its Subsidiaries or any ERISA
Affiliate, if such "employee
benefit plan" were terminated, would have any
"amount of unfunded benefit
liabilities" (as defined under Section 4001(a)(18)
of ERISA), except as would
not, individually or in the aggregate, reasonably be
expected to result in a
Material Adverse Effect. None of the Company, its
Subsidiaries or any ERISA
Affiliate has incurred or reasonably expects to incur
any liability under (i) Title
IV of ERISA with respect to termination of, or
withdrawal from, any
"employee benefit plan" or (ii) Sections 412, 4975 or
4980B
of the Code, except as would
not, individually or in the aggregate, reasonably
be expected to result in a
Material Adverse Effect. Except as would not,
individually or in the
aggregate, reasonably be
12
<PAGE>
expected to result in a
Material Adverse Effect, each "employee benefit plan"
established or maintained by
the Company or its Subsidiaries that is intended to
be qualified under Section
401 of the Code is so qualified and nothing has
occurred, whether by action
or failure to act, that would reasonably be expected
to cause the loss of such
qualification.
(b) With respect to each employee benefit plan, program, or
other
arrangement providing
compensation or benefits to any current or former
employee, director, officer
or consultant (or any dependent or beneficiary
thereof) of the Company or
its Subsidiaries that is subject to the laws of any
jurisdiction outside of the
United States (the "FOREIGN PLANS"): (i) such
Foreign Plan has been
maintained in all material respects in accordance with
all
applicable requirements and
all applicable laws, (ii) except as would not
reasonably be expected to
result in a material liability to the Company or any
of its Subsidiaries, if
intended to qualify for special tax treatment, such
Foreign Plan meets all
requirements for such treatment, (iii) except as would
not reasonably be expected to
result in a material liability to the Company or
any of its Subsidiaries, if
intended or required to be funded and/or
book-reserved, such Foreign
Plan is fully funded and/or book reserved, as
appropriate, based upon
reasonable actuarial assumptions, and (iv) no material
liability exists or
reasonably could be expected to be imposed upon the
assets
of the Company or any of its
Subsidiaries by reason of such Foreign Plan.
(xli) Labor Disputes. No labor disturbance by the employees of
the
Company or any Subsidiary
exists or, to the knowledge of the Company and each
Subsidiary Guarantor, is
imminent, which, in either case (individually or in the
aggregate), would reasonably
be expected to result in a Material Adverse Effect.
(xlii) Insurance. The Company and its Subsidiaries have
insurance
covering their respective
properties, operations, personnel and businesses,
which insurance the Company
believes to be appropriate and is in amounts and
insures against such losses
or risks as are customary in the industry in which
the Company and its
Subsidiaries operate, and all such insurance is in full
force and effect. None of the
Company or any of its Subsidiaries has received
notice from any insurer or
agent of such insurer that capital improvements or
other expenditures are
required or necessary to be made (other than capital
improvements or other
expenditures that have been made) in order to continue
such insurance except such
notices as would not reasonably be expected to have a
Material Adverse
Effect.
(xliii) Related Party Transactions. No relationship, direct
or
indirect, exists between or
among any of the Company and its Subsidiaries, on
the one hand, and any
director, officer, shareholder, affiliate, customer or
supplier of any of them, on
the other hand, which would be required by the 1933
Act or by the rules and
regulations promulgated pursuant thereto to be disclosed
in a registration statement
on Form F-1 which is not so disclosed in the Final
Offering Memorandum. Set
forth on Schedule D hereto is a complete list of all
agreements between the
Company or any Restricted Subsidiary (as defined in the
Offering Memorandum), on the
one hand, and an Affiliate (as defined in the
Offering Memorandum) of such
entity, on the other hand.
(xliv) Unlawful Contributions. None of the Company, any of
its
Subsidiaries or any director,
officer, agent, employee or other person acting
with specific instruction
from the Company or any of its Subsidiaries has (A)
used any corporate funds for
any unlawful
13
<PAGE>
contribution, gift,
entertainment or other unlawful expense relating to
political activity, (B) made
any direct or indirect unlawful payment to any
foreign or domestic
government official or employee from corporate funds,
(C)
caused the Company or any of
its Subsidiaries to be in violation of any
provision of the U.S. Foreign
Corrupt Practices Act of 1977 or other national or
local law regulating the
payments of bribes to government officials or
employees, or (D) made any
bribe or other unlawful payment.
(xlv) Foreign Assets Control Regulations.
(a) Neither the sale of the Notes by the Company
hereunder
with the benefit of the
Subsidiary Guarantees of the Subsidiary Guarantors nor
the Company's use of the
proceeds thereof as described in the Final Offering
Memorandum will violate (i)
the Trading with the Enemy Act, as amended, (ii) any
of the foreign assets control
regulations of the United States Treasury
Department (31 CFR, Subtitle
B, Chapter V, as amended) or any enabling
legislation or executive
order relating thereto or (iii) Executive Order No.
13,224, 66 Fed Reg 49,079
(2001), issued by the President of the United States
(Executive Order Blocking
Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit or
Support Terrorism) (the "TERRORISM ORDER") or (iv)
the Uniting and Strengthening
America by Providing Appropriate Tools Required to
Intercept and Obstruct
Terrorism (USA PATRIOT ACT) Act of 2001, Public Law
107-56 (October 26,
2001).
(b) None of the Company nor any Subsidiary (i) is a
"blocked
person" as described in
Section 1 of the Terrorism Order or (ii) to the
knowledge of the Company or
any of the Subsidiary Guarantors, engages in any
dealings or transactions, or
is otherwise associated, with any such blocked
person.
(xlvi) Sale Proceeds. None of the transactions contemplated by
this
Agreement (including without
limitation, the use of the proceeds from the sale
of the Notes), will violate
or result in a violation of Section 7 of the 1934
Act, or any regulation
promulgated thereunder, including, without limitation,
Regulations T, U, and X of
the Board of Governors of the Federal Reserve System.
(xlvii) Tax Returns. All income tax returns of the Company and
its
Subsidiaries required by law
to be filed have been filed and all taxes shown by
such returns or otherwise
assessed, which are due and payable, have been paid,
except assessments against
which appeals have been or will be promptly taken and
as to which reasonably
adequate reserves have been provided. The Company and
its
Subsidiaries have filed all
other tax returns that are required to have been
filed by them pursuant to
applicable foreign, national, state, local or other
law, and have paid all taxes
due pursuant to such returns or pursuant to any
assessment received by the
Company and its Subsidiaries, except for such taxes,
if any, as are being
contested in good faith and by appropriate proceedings
and
as to which adequate reserves
have been provided, except to the extent that the
failure to do so would not
reasonably be likely to either result in a Material
Adverse Effect or cause a
default under any material contract, indenture,
mortgage, deed of trust, loan
or credit agreement, note, guarantee, lease,
debenture or other evidence
of Indebtedness (including the Indenture). All such
income tax returns and other
tax returns filed by the Company and its
Subsidiaries are accurate in
all material respects. The charges, accruals and
reserves on the books of the
Company and its Subsidiaries in respect of all tax
liabilities of the
14
<PAGE>
Company and its Subsidiaries
for any years not finally determined are adequate
to meet any assessments or
re-assessments for additional tax for such years,
except to the extent of any
inadequacy that would not reasonably be likely to
result in a Material Adverse
Effect.
(xlviii) Registration Rights. There are no holders of
securities
(debt or equity) of the
Company, or holders of rights (including, without
limitation, preemptive
rights), warrants or options to obtain securities of the
Company, who in connection
with the issuance, sale and delivery of the Notes and
the execution, delivery and
performance of this Agreement and the Registration
Right Agreement, have the
right to request the Company to register securities
held by them under the 1933
Act.
(b)
Officer's Certificates. Any certificate signed by any officer of
the
Company or any Subsidiary
Guarantor delivered to the Representatives or to
counsel for the Initial
Purchasers shall be deemed a representation and warranty
by the Company or such
Subsidiary Guarantor to each Initial Purchaser as to the
matters covered
thereby.
SECTION 2.
Sale and Delivery to Initial Purchasers; Closing.
(a) Series
A Notes. On the basis of the representations and
warranties
herein contained and subject
to the terms and conditions herein set forth, the
Company agrees to sell to
each Initial Purchaser, severally and not jointly, and
each Initial Purchaser
severally and not jointly, agrees to purchase from the
Company, at the purchase
price of 97.875% of the principal amount thereof, the
aggregate principal amount of
Series A Notes set forth in Schedule A opposite
the name of such Initial
Purchaser, plus any additional principal amount of
Series A Notes which such
Initial Purchaser may become obligated to purchase
pursuant to the provisions of
Section 11 hereof.
(b)
Payment. Payment of the purchase price for the Series A Notes shall
be
made by the Initial
Purchasers, in United States dollars in immediately
available funds by wire
transfer to the account of the Company at Citibank New
York (CITIUS33) for account
of Citibank Singapore (CITISGSG), Account No.
10991581, ABA# 021000089, or
such other account to be specified by the Company,
before 11:00 A.M. New York
City time on November 18, 2004 (the "CLOSING DATE"),
or at the same time on such
other date, not later than seven calendar days after
the foregoing date, as shall
be agreed upon by the Representatives and the
Company (such time and date
of payment being herein called the "CLOSING TIME").
Payment
shall be made to the Company against delivery to the
Representatives for the
respective accounts of the Initial Purchasers of the
Series A Notes to be
purchased by them. It is understood that each Initial
Purchaser has authorized the
Representatives, for its account, to accept
delivery of, receipt for, and
make payment of the purchase price for, the Series
A Notes which it has agreed
to purchase. Deutsche Bank and Lehman Brothers,
individually and not as
representatives of the Initial Purchasers, may (but
shall not be obligated to)
make payment of the purchase price for the Series A
Notes to be purchased by any
Initial Purchaser whose funds have not been
received by the Closing Time
or the relevant Date of Delivery, as the case may
be, but such payment shall
not relieve such Initial Purchaser from its
obligations
hereunder.
15
<PAGE>
(c)
Delivery. The Company will deliver to the Initial Purchasers
against
payment of the purchase price
thereof the Series A Notes to be purchased by the
Initial Purchasers hereunder
and to be offered and sold by each Initial
Purchaser in reliance on
Regulation S in the form of one or more global notes in
definitive form (the
"REGULATION S GLOBAL NOTES") and registered in the name
of
Cede & Co., as nominee of
The Depository Trust Company ("DTC"), and deposited
with the Trustee as custodian
for DTC for the respective accounts of the DTC
participants for Euroclear
Bank S.A./N.V., as operator of the Euroclear System
("EUROCLEAR"), and
Clearstream Banking, societe anonyme ("CLEARSTREAM").
The
Company will deliver to the
Initial Purchasers against payment of the purchase
price thereof the Series A
Notes to be purchased by the Initial Purchasers
hereunder and to be offered
and sold by each Initial Purchaser in reliance on
Rule 144A in the form of one
or more global notes in definitive form (the
"RESTRICTED GLOBAL NOTES")
deposited with the Trustee as custodian for DTC and
registered in the name of
Cede & Co., as nominee for DTC. The Regulation S
Global Notes and the
Restricted Global Notes shall be assigned separate CUSIP
numbers. The Regulation S
Global Notes and the Restricted Global Notes shall
include the legend regarding
restrictions on transfer set forth under "Selling
and Transfer Restrictions" in
the Offering Memorandum. Interests in the
Regulation S Global Notes and
the Restricted Global Notes will be held only in
book-entry form through DTC
except in the limited circumstances described in the
Indenture when they may be
transferred in the form of definitive certificated
Notes.
SECTION 3.
Covenants of the Company and the Subsidiary Guarantors.
The
Company and each Subsidiary
Guarantor covenants with each Initial Purchaser as
follows:
(a)
Offering Memorandum. During the period from the date hereof to
that
indicated in Section 3(b)(y)
below, the Company, as promptly as possible, will
furnish to each Initial
Purchaser, without charge, such number of copies of the
Preliminary Offering
Memorandum, the Final Offering Memorandum and any
amendments and supplements
thereto and documents incorporated by reference
therein as such Initial
Purchaser may reasonably request.
(b) Notice
and Effect of Material Events. The Company will
immediately
notify each Initial
Purchaser, and confirm such notice in writing, of (x)
any
filing made by the Company or
any Subsidiary Guarantor of information relating
to the offering of the Series
A Notes with any securities exchange or any other
regulatory body in the United
States or any other jurisdiction, and (y) at any
time during the period ending
the earlier of (1) nine months after the Closing
Date or (2) the completion of
the resale of the Series A Notes by the Initial
Purchasers as evidenced by a
notice in writing from the Initial Purchasers to
the Company, and the
Representatives hereby agree to provide such notice, any
material changes in or
affecting the condition, financial or otherwise, or the
earnings, business affairs or
business prospects of the Company and its
Subsidiaries considered as
one enterprise which (i) make any statement in the
Offering Memorandum false or
misleading or (ii) are not disclosed in the
Offering Memorandum. In such
event or if during such time any event shall occur
as a result of which it is
necessary, in the reasonable opinion of any of the
Company, its counsel, the
Initial Purchasers or counsel for the Initial
Purchasers, to amend or
supplement the Final Offering Memorandum in order that
the Final Offering Memorandum
not include any untrue statement of a material
fact or omit to state a
material fact necessary in order to make the statements
therein not misleading in the
light of the circumstances then existing, the
Company will forthwith amend
or supplement the Final Offering Memorandum by
preparing and furnishing to
each Initial Purchaser an amendment or
16
<PAGE>
amendments of, or a
supplement or supplements to, the Final Offering
Memorandum
(in form and substance
satisfactory in the reasonable opinion of counsel for
the
Initial Purchasers) so that,
as so amended or supplemented, the Final Offering
Memorandum will not include
an untrue statement of a material fact or omit to
state a material fact
necessary in order to make the statements therein, in
the
light of the circumstances
existing at the time it is delivered to a Subsequent
Purchaser, not
misleading.
(c)
Amendment to Offering Memorandum and Supplements. The Company
will
advise each Initial Purchaser
promptly of any proposal to amend or supplement
the Final Offering Memorandum
and will not effect such amendment or supplement
without the consent of the
Initial Purchasers, which shall not be unreasonably
withheld. Neither the consent
of the Initial Purchasers, nor the Initial
Purchaser's delivery of any
such amendment or supplement, shall constitute a
waiver of any of the
conditions set forth in Section 5 hereof.
(d)
Qualification of Notes for Offer and Sale. The Company and
the
Subsidiary Guarantors will
use their best efforts, in cooperation with the
Initial Purchasers, to
qualify the Series A Notes for offering and sale under
the applicable securities
laws of such states and other jurisdictions as the
Representatives may designate
and will maintain such qualifications in effect as
long as required for the sale
of the Notes; provided, however, that the Company
and the Subsidiary Guarantors
shall not be obligated to file any general consent
to service of process or to
qualify as a foreign corporation or as a dealer in
securities or take any other
action in any jurisdiction in which it is not so
qualified or to subject
itself to taxation in respect of doing business in any
jurisdiction in which it is
not otherwise so subject.
(e) DTC.
The Company and the Subsidiary Guarantors will cooperate with
the
Representatives and use their
best efforts to permit the Notes to be eligible
for clearance and settlement
through the facilities of DTC and will assist the
Initial Purchasers in
obtaining the approval of DTC for "book-entry" transfer
of
the Notes in global
form.
(f)
Euroclear and Clearstream. The Company and the Subsidiary
Guarantors
will cooperate with the
Representatives and use their best efforts to permit the
Notes to be eligible for
clearance and settlement through the facilities of
Euroclear and Clearstream and
will assist the Initial Purchasers in obtaining
the approval of Euroclear and
Clearstream for "book-entry" transfer of the Notes
in global form.
(g) Use of
Proceeds. The Company will use the net proceeds received by
it
from the sale of the Series A
Notes in the manner specified in the Offering
Memorandum under "Use of
Proceeds".
(h)
Restriction on Sale of Securities. For a period of 90 days from
the
date of this Agreement, the
Company and each of the Subsidiary Guarantors agree
not to, directly or
indirectly, sell, offer to sell, contract to sell, grant
any
option to purchase, issue any
instrument convertible into or exchangeable for,
or otherwise transfer or
dispose of (or enter into any transaction or device
which is designed to, or
could be expected to, result in the disposition in the
future of), any debt
securities of the Company or any of the Subsidiary
Guarantors with terms
substantially similar (including having equal rank) to
the
Series A Notes (other than
the Series A
17
<PAGE>
Notes), except (i) for the
Series B Notes in connection with the Exchange Offer
or (ii) with the prior
consent of the Representatives, which consent will not
be
unreasonably
withheld.
(i) PORTAL
Designation. The Company and the Subsidiary Guarantors will
use
their best efforts to permit
the Notes to be designated PORTAL securities in
accordance with the rules and
regulations adopted by the National Association of
Securities Dealers, Inc.
("NASD") relating to trading in the PORTAL Market.
(j)
Listing on Securities Exchange. The Company will use its best
efforts
to have the Notes listed or
admitted to trading on the SGX-ST.
(k)
Reporting Requirements. The Company, during the period when
the
Offering Memorandum is
required to be delivered pursuant to Section 6(a)(vi)
hereof, will file all
documents required to be filed with the Commission
pursuant to the 1934 Act
within the time periods required by the 1934 Act and
the 1934 Act
Regulations.
(l)
Investment Company. The Company shall not invest, or otherwise use
the
proceeds received by the
Company from its sale of the Series A Notes in such a
manner as would require the
Company or any of the Subsidiaries to register as an
investment company under the
1940 Act.
(m) Rating
Agencies. The Company will take all reasonable action
necessary
to enable Standard &
Poor's Corporation ("S&P") and Moody's Investors
Service,
Inc. ("MOODY'S") to reaffirm
their respective credit ratings on the Company's
outstanding senior debt,
including for this purpose, the issuance of the Series
A Notes.
(n)
Stabilization and Manipulation. In connection with the issuance
and
sale of the Series A Notes,
until the Representatives have notified the Company
and the other Initial
Purchasers of the completion of resales of the Series A
Notes by the Initial
Purchasers, none of the Company, the Subsidiary
Guarantors
nor any of their respective
affiliates has taken, nor will any of them take,
directly or indirectly, any
action designed to or that might reasonably be
expected to cause or result
in stabilization or manipulation of the price of the
Series A Notes to facilitate
the sale or resale of the Series A Notes. Except as
permitted by the Securities
Act, the Company and the Subsidiary Guarantors will
not distribute any offering
material in connection with the resales of the
Series A Notes.
(o)
Exchange Offer. The Company and the Subsidiary Guarantors agree
to
cause the Exchange Offer, if
available, to be made in the appropriate form, as
contemplated by the
Registration Rights Agreement, to permit registration of
the
Series B Notes to be offered
in exchange for the Series A Notes, and to comply
with all applicable federal
and state securities laws in connection with the
Exchange Offer.
(p) Trust
Indenture Act. The Company and the Subsidiary Guarantors
agree
that prior to any
registration of the Notes pursuant to the Registration
Rights
Agreement, or at such earlier
time as may be required, the Indenture shall be
qualified under the TIA and
any necessary supplemental indentures will be
entered into in connection
therewith.
(q) Korea
Guarantee. The Company and STATS ChipPAC Korea Ltd.
("STATS
CHIPPAC KOREA") each agree to
(1) use its best efforts to obtain, on or prior to
the Closing
18
<PAGE>
Time, all required regulatory
approvals, including, without limitation,
regulatory approval from the
Bank of Korea, required for the valid issuance of
STATS ChipPAC Korea's
Subsidiary Guarantee (the "KOREA APPROVALS") and (2)
validly issue the STATS
ChipPAC Korea Subsidiary Guarantee (the "KOREA
GUARANTEE"). If, despite such
best efforts, the Korea Approvals are not obtained
prior to the Closing Time,
the Company and STATS ChipPAC Korea each agree to (A)
use its best efforts to
obtain the Korea Approvals as soon as practicable
following the Closing Time,
and, in any event, within 30 days following the
Closing Time and (B) validly
issue the Korea Guarantee. STATS ChipPAC Korea
agrees to provide the Korea
Guarantee at the Closing Time (if the Korea
Approvals are obtained on or
prior to the Closing Time) or on the business day
following receipt of the
Korea Approvals (if the Korea Approvals are obtained
within the 30-day period
following the Closing Time).
(r) Return
on Debt Securities. The Company will duly complete and
execute
the Return on Debt Securities
in respect of the Notes and submit it to the MAS
and the Comptroller of Income
Tax of Singapore within 10 business days after the
Closing Date.
(s)
Further Assurances. The Company and the Subsidiary Guarantors will
do
and perform all things
required or necessary to be done and performed under
this
Agreement by them prior to
the Closing Date, and to satisfy all conditions
precedent to the Initial
Purchasers' obligations hereunder to purchase the
Series A Notes.
SECTION 4.
Payment of Expenses and Commissions.
(a)
Expenses. The Company and the Subsidiary Guarantors will pay
all
expenses incident to the
performance of their obligations under this Agreement,
including, without
limitation, (i) the preparation, printing, delivery to
the
Initial Purchasers and any
filing of the Offering Memorandum (including, without
limitation, financial
statements and any schedules or exhibits and any
document
incorporated therein by
reference) and of each amendment or supplement thereto,
(ii) the preparation,
issuance and delivery of the certificates for the
Restricted Global Notes and
Regulation S Global Notes, including, without
limitation, any transfer
taxes, any stamp or other duties payable upon the sale,
issuance and delivery of the
Series A Notes to the Initial Purchasers and any
charges of DTC, Euroclear or
Clearstream in connection therewith and any goods
and services tax attributable
to any fees and expenses payable under this
Agreement, (iii) the fees and
disbursements of the Company's counsel and
accountants, (iv) the
qualification of the Notes and the Subsidiary Guarantees
under securities laws in
accordance with the provisions of Section 3(d) hereof,
including, without
limitation, filing fees and the reasonable fees and
disbursements of counsel for
the Initial Purchasers in connection therewith and
in connection with the
preparation of the Blue Sky Survey and any supplement
thereto, (v) the fees and
expenses of the Trustee, including, without
limitation, the fees and
disbursements of counsel for the Trustee in connection
with the Indenture and the
Notes, (vi) any fees and expenses payable in
connection with the initial
and continued designation of the Notes as PORTAL
securities under the PORTAL
Market Rules pursuant to NASD Rule 5322, and (vii)
any fees and expenses payable
in connection with the initial and continued
listing of the Notes on the
SGX-ST; provided, however, that the Initial
Purchasers will pay, or
reimburse the Company for, aggregate expenses incurred
pursuant to this Section 4(a)
by the Company or the Initial Purchasers in excess
of $500,000, in an amount not
to exceed a total of $250,000.
19
<PAGE>
(b)
Termination of Agreement. If this Agreement is terminated by
the
Representatives in accordance
with the provisions of Section 5 hereof, the
Company and the Subsidiary
Guarantors shall reimburse the Initial Purchasers for
all of their out-of-pocket
expenses, including, without limitation, the
reasonable and documented
fees and disbursements of counsel for the Initial
Purchasers, up to a maximum
of US$100,000.
SECTION 5.
Conditions of Initial Purchasers' Obligations. The
obligations
of the several Initial
Purchasers hereunder are subject to the accuracy of the
representations and
warranties of the Company and the Subsidiary Guarantors
contained in Section 1
hereof, as of the date hereof and as of the Closing
Date,
or in certificates of any
officer of the Company or any of its Subsidiaries
delivered pursuant to the
provisions hereof, to the performance by the Company
and the Subsidiary Guarantors
of their covenants and other obligations
hereunder, and to the
following further conditions (any of which may be waived
by the Representatives, for
and on behalf of the Initial Purchasers):
(a)
Opinion of United States Counsel for the Company and the
Subsidiary
Guarantors. At the Closing
Time, the Representatives shall have received the
opinion, dated as of the
Closing Time, of Kirkland & Ellis LLP, United States
counsel for the Company and
the Subsidiary Guarantors, substantially in the form
set forth in Exhibit A
hereto. In rendering such opinion, such counsel may (i)
state that their opinion is
limited to matters governed by the federal laws of
the United States, the laws
of the State of New York and the
