REGISTRATION RIGHTS AGREEMENT Dated as of July 19, 2005 by and among STATS ChipPac Ltd., the Guarantor Signatories Hereto and Credit Suisse First Boston (Singapore) Limited Deutsche Bank AG, Singapore Branch
Exhibit 4.2
EXECUTION COPY
Dated as of July 19, 2005
by and among
by and among
the Guarantor Signatories Hereto
and
Credit Suisse First Boston (Singapore) Limited
Deutsche Bank AG, Singapore Branch
This Registration Rights Agreement (this “Agreement”) is made and entered into as of
July 19, 2005, by and among STATS ChipPac Ltd., a corporation organized under the laws of the
Republic of Singapore (the “Company”) and the subsidiaries of the Company listed on the
signature pages hereto (the “Guarantors”), and Credit Suisse First Boston (Singapore)
Limited (“CSFB”) and Deutsche Bank AG, Singapore Branch (“Deutsche Bank”) as joint lead managers
and joint book-running managers, (collectively the “Joint Lead Managers”) and each of the other
Initial Purchasers (as defined herein) named in Schedule A of the Purchase Agreement (as
defined below) (collectively with the Joint Lead Managers, the “Initial Purchasers”, which term
shall also include any initial purchaser substituted as hereinafter provided in Section 11 of the
Purchase Agreement (as defined herein)), for whom CSFB and Deutsche Bank are acting as
representatives (in such capacity, the “Representatives”), with respect to the issuance and sale
by the Company and the purchase, or the procurement of purchasers, by the Initial Purchasers,
acting severally and not jointly, of the respective principal amounts set forth in the Purchase
Agreement of the Company’s 7.5% Series A Senior Notes due 2010 (the “Series A Notes”)
pursuant to the Purchase Agreement, dated July 12, 2005, (the “Purchase Agreement”), by and
among the Company, the Guarantors and the Initial Purchasers.
In order to induce the Initial Purchasers to purchase the Series A Notes, the Company has
agreed to provide the registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the obligations of the Initial Purchasers set forth in Section
5 of the Purchase Agreement. Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them the Indenture, dated July 19, 2005, between the Company and U.S. Bank
National Association, as Trustee, relating to the Series A Notes and the Series B Notes (the
“Indenture”).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the following meanings:
Act: The Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
Affiliate: As defined in Rule 144 of the Act.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Certificated Securities: Definitive Notes, as defined in the Indenture.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed “Consummated” for purposes of this
Agreement upon the occurrence of (a) the effectiveness under the Act of the Exchange Offer
Registration Statement relating to the Series B Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the period required pursuant to
Section 3(b) hereof and (c) the delivery by the Company to the Registrar under the Indenture of
Series B Notes in the same aggregate principal amount as the aggregate principal amount of Series A
Notes validly tendered by Holders thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Section 3(a) and 4(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
Exchange Offer: The exchange and issuance by the Company of a principal amount of
Series B Notes (which shall be registered pursuant to the Exchange Offer Registration Statement)
equal to the outstanding principal amount of Series A Notes that are validly tendered by such
Holders in connection with such exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement relating to the
Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose to sell the
Series A Notes to certain “qualified institutional buyers,” as such term is defined in Rule 144A
under the Act and pursuant to Regulation S under the Act.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Holders: As defined in Section 2 hereof.
Notes: The Series A Notes and the Series B Notes.
Prospectus: The prospectus included in a Registration Statement at the time such
Registration Statement is declared effective (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an effective
Registration Statement in reliance upon Rule 430A under the Act), as amended or supplemented by any
prospectus supplement and by all other amendments thereto, including post-effective amendments, and
all material incorporated by reference into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company and the Guarantors
relating to (a) an offering of Series B Notes pursuant to an Exchange Offer or (b) the registration
for resale of Transfer Restricted Securities pursuant to the Shelf Registration Statement, in each
case, (i) that is filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
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Regulation S: Regulation S promulgated under the Act.
Rule 144: Rule 144 promulgated under the Act.
Rule 144A: Rule 144A promulgated under the Act.
Series B Notes: The Company’s 7.5% Series B Senior Notes due 2010 to be issued
pursuant to the Indenture: (i) in the Exchange Offer or (ii) as contemplated by Section 6 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in effect on
the date of the Indenture.
Transfer Restricted Securities: Shall mean each Note, until the earliest to occur of
(i) the date on which such Series A Note is exchanged in the Exchange Offer by a Person other than
a Broker-Dealer for a Series B Note which is entitled to be resold to the public by the Holder
thereof without complying with the prospectus delivery requirements of the Act, (ii) following the
exchange by a Broker-Dealer in the Exchange Offer of a Series A Note for a Series B Note, the date
on which such Series B Note is sold to a purchaser who receives from such Broker-Dealer on or prior
to the date of such sale a copy of the Prospectus contained in the Exchange Offer Registration
Statement, (iii) the date on which such Series A Note has been effectively registered under the Act
and disposed of in accordance with a Shelf Registration Statement (and the purchasers thereof have
been issued Series B Notes), or (iv) the date on which such Series A Note is distributed to the
public pursuant to Rule 144 under the Act.
SECTION 2. HOLDERS
A Person is deemed to be a holder (a “Holder”) of Transfer Restricted Securities
whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal law or Commission
policy (after the procedures set forth in Section 6(a)(i) below have been complied with), the
Company and the Guarantors shall (i) cause the Exchange Offer Registration Statement to be filed
with the Commission on or prior to 120 days after the Closing Date (such 120th day being the
“Filing Deadline”), (ii) use commercially reasonable efforts to cause such Exchange Offer
Registration Statement to be declared effective by the Commission on or prior to 180 days after the
Closing Date (such 180th day being the “Effectiveness Deadline”), (iii) in connection with
the foregoing, (A) file all pre-effective amendments to such Exchange Offer Registration Statement
as may be necessary in order to cause it to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement pursuant to Rule 430A under
the Act and (C) cause all necessary filings, if any, in connection with the registration and
qualification of the Series B Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv)
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commence and use its commercially reasonable efforts to Consummate the Exchange Offer not
later than 30 Business Days, or longer, if required by the federal securities laws, after the
Exchange Offer Registration Statement is declared effective (such 30th day being the
“Consummation Deadline”). The Exchange Offer shall be on the appropriate form permitting
(i) registration of the Series B Notes to be offered in exchange for the Series A Notes that are
Transfer Restricted Securities and (ii) resales of Series B Notes by Broker-Dealers that tendered
into the Exchange Offer Series A Notes that such Broker-Dealer acquired for its own account as a
result of market making activities or other trading activities (other than Series A Notes acquired
directly from the Company or any of its Affiliates) as contemplated
by Section
3(c) below.
3(c) below.
(b) The Company and the Guarantors shall use commercially reasonable efforts to cause the
Exchange Offer Registration Statement to be effective continuously, and shall keep the Exchange
Offer open for a period of not less than the minimum period required under applicable federal and
state securities laws to Consummate the Exchange Offer; provided, however, that in no event shall
such period be less than 20 Business Days. The Company and the Guarantors shall cause the Exchange
Offer to comply with all applicable federal and state securities laws. No securities other than
the Series B Notes shall be included in the Exchange Offer Registration Statement.
(c) The Company shall include a “Plan of Distribution” section in the Prospectus contained in
the Exchange Offer Registration Statement and indicate therein that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for the account of such Broker-Dealer as a result
of market-making activities or other trading activities (other than Series A Notes acquired
directly from the Company or any Affiliate of the Company), may exchange such Transfer Restricted
Securities pursuant to the Exchange Offer. Such “Plan of Distribution” section shall also contain
all other information with respect to such sales by such Broker-Dealers that the Commission may
require in order to permit such sales pursuant thereto, but such “Plan of Distribution” shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted Securities held by any
such Broker-Dealer, except to the extent required by the Commission as a result of a change in
policy, rules or regulations after the date hereof.
Because such Broker-Dealer may be deemed to be an “underwriter” within the meaning of the Act
and must, therefore, deliver a prospectus meeting the requirements of the Act in connection with
its initial sale of any Series B Notes received by such Broker-Dealer in the Exchange Offer, the
Company and Guarantors shall permit the use of the Prospectus contained in the Exchange Offer
Registration Statement by such Broker-Dealer to satisfy such prospectus delivery requirement. To
the extent necessary to ensure that the Prospectus contained in the Exchange Offer Registration
Statement is available for sales of Series B Notes by Broker-Dealers, the Company and the
Guarantors agree to use commercially reasonable efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented, amended and current as required by and subject to
the provisions of Section 6(a) and (c) hereof and in conformity with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as announced from time
to time, for a period of 180 days from the Consummation Deadline or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Registration Statement have been
sold pursuant thereto. The Company and the Guarantors shall provide sufficient copies of the
latest version of such
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Prospectus to such Broker-Dealers, promptly upon request, and in no event later than one day
after such request, at any time during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Guarantors are not (A) required to
file the Exchange Offer Registration Statement or (B) permitted to Consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or Commission policy (after the
Company and the Guarantors have complied with the procedures set forth in Section 6(a)(i) hereof)
or (ii) if any Holder of Transfer Restricted Securities shall notify the Company within 20 Business
Days following the Consummation Deadline that (A) such Holder was prohibited by law or Commission
policy from participating in the Exchange Offer or (B) such Holder may not resell the Series B
Notes acquired by it in the Exchange Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available
for such resales by such Holder or (C) such Holder is a Broker-Dealer and holds Series A Notes
acquired directly from the Company or any of its Affiliates, then the Company and the Guarantors
shall use commercially reasonable efforts to:
(x) cause to be filed, on or prior to 30 days after the earlier of (i) the date on which
the Company determines that the Exchange Offer Registration Statement cannot be filed as a
result of clause (a)(i) above and (ii) the date on which the Company receives the notice
specified in clause (a)(ii) above, (such earlier date, the “Filing Deadline”), a shelf
registration statement pursuant to Rule 415 under the Act (which may be an amendment to the
Exchange Offer Registration Statement (the “Shelf Registration Statement”)), relating to
all Transfer Restricted Securities, and
(y) cause such Shelf Registration Statement to become effective on or prior to 90 days
after the Filing Deadline for the Shelf Registration Statement (such 90th day the
“Effectiveness Deadline”).
If, after the Company has filed an Exchange Offer Registration Statement that satisfies the
requirements of Section 3(a) above, the Company is required to file and make effective a Shelf
Registration Statement solely because the Exchange Offer is not permitted under applicable federal
law (i.e., pursuant to clause (a)(i) above), then the filing of the Exchange Offer Registration
Statement shall be deemed to satisfy the requirements of clause (x) above; provided that, in such
event, the Company shall remain obligated to meet the Effectiveness Deadline set forth in clause
(y).
To the extent necessary to ensure that the Shelf Registration Statement is available for sales
of Transfer Restricted Securities by the Holders thereof entitled to the benefit of this Section
4(a) and the other securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Company and the Guarantors shall use commercially reasonable efforts to keep any Shelf
Registration Statement required by this Section
4(a) continuously effective, supplemented, amended and current as required by and subject to the provisions of Sections 6(b) and (c) hereof and in conformity with the requirements of this Agreement, the Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of at least two years (as may be extended pursuant to Section 6(c)(i) hereof) following the Closing Date, or such
4(a) continuously effective, supplemented, amended and current as required by and subject to the provisions of Sections 6(b) and (c) hereof and in conformity with the requirements of this Agreement, the Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of at least two years (as may be extended pursuant to Section 6(c)(i) hereof) following the Closing Date, or such
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shorter period as will terminate when all Transfer Restricted Securities covered by such Shelf
Registration Statement have been sold pursuant thereto.
The Company shall be deemed not to have used commercially reasonable efforts to keep the Shelf
Registration Statement effective during the requisite period if it voluntarily takes any action
that would result in Holders of Transfer Restricted Securities covered thereby not being able to
publicly offer and sell such Transfer Restricted Securities during that period, unless (i) such
action is required by applicable law or (ii) such action is taken by the Company in good faith and
for valid business reasons (not including avoidance of the Company’s obligations hereunder),
including the acquisition or divestiture of assets, so long as the Company promptly thereafter
complies with the requirements of Section 6 hereto, if applicable.
(b) Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement pursuant to this Agreement unless and
until such Holder furnishes to the Company in writing, within 20 days after receipt of a request
therefor, the information specified in Item 507 or 508 of Regulation S-K, as applicable, of the Act
for use in connection with any Shelf Registration Statement or Prospectus or preliminary Prospectus
included therein and any other information reasonably required by the Company in order to fulfill
its obligations hereunder. No Holder of Transfer Restricted Securities shall be entitled to
liquidated damages pursuant to Section 5 hereof unless and until such Holder shall have provided
all such information. Each selling Holder agrees to promptly furnish additional information as
requested by the Commission or as required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not filed with the Commission
on or prior to the applicable Filing Deadline, (ii) any such Registration Statement has not been
declared effective by the Commission on or prior to the applicable Effectiveness Deadline, (iii)
the Exchange Offer has not been Consummated on or prior to the Consummation Deadline or (iv) any
Registration Statement required by this Agreement is filed and declared effective but shall
thereafter cease to be effective or fail to be usable for its intended purpose without being
succeeded immediately by a post-effective amendment to such Registration Statement or another
Registration Statement that cures such failure and that is itself declared effective immediately
(each such event referred to in clauses (i) through (iv), a “Registration Default”), then
the Company and the Guarantors hereby jointly and severally agree to pay to each Holder of Transfer
Restricted Securities affected thereby liquidated damages that will accrue on the principal amount
of Transfer Restricted Securities at the rate of 0.50% per annum from and including the date on
which any such Registration Default shall occur to, but excluding, the date on which all
Registration Defaults have been cured; provided that the Company and the Guarantors shall in no
event be required to pay liquidated damages for more than one Registration Default at any given
time. Such interest is payable in addition to any other interest payable from time to time with
respect to the Transfer Restricted Securities.
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All accrued liquidated damages shall be paid to the Holders of Transfer Restricted Securities
entitled thereto, in the manner provided for the payment of interest in the Indenture, on each
Interest Payment Date, as more fully set forth in the Indenture and the Notes. Notwithstanding the
fact that any securities for which liquidated damages are due cease to be Transfer Restricted
Securities, all obligations of the Company and the Guarantors to pay liquidated damages for the
period during which such securities were Transfer Restricted Securities shall survive until such
time as such obligations with respect to such securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the
Company and the Guarantors shall (x) comply with all applicable provisions of Section 6(c) below,
(y) use commercially reasonable efforts to effect such exchange and to permit the resale of Series
B Notes by Broker-Dealers that tendered in the Exchange Offer Series A Notes that such
Broker-Dealer acquired for its own account as a result of its market making activities or other
trading activities (other than Series A Notes acquired directly from the Company or any of its
Affiliates) being sold in accordance with the intended method or methods of distribution thereof as
described in the relevant section of the Exchange Offer Registration Statement then in effect, and
(z) comply with all of the following provisions:
(i) If, following the date hereof there has been announced a change in Commission
policy with respect to exchange offers such as the Exchange Offer, that in the reasonable
opinion of counsel to the Company raises a substantial question as to whether the Exchange
Offer is permitted by applicable federal law, the Company and the Guarantors hereby agree to
seek a no-action letter or other favorable decision from the Commission allowing the Company
and the Guarantors to Consummate an Exchange Offer for such Transfer Restricted Securities.
The Company and the Guarantors hereby agree to pursue the issuance of such a decision to the
Commission staff level. In connection with the foregoing, the Company and the Guarantors
hereby agree to take all such other actions as may be requested by the Commission or
otherwise required in connection with the issuance of such decision, including without
limitation (A) participating in telephonic conferences with the Commission, (B) delivering
to the Commission staff an analysis prepared by counsel to the Company setting forth the
legal bases, if any, upon which such counsel has concluded that such an Exchange Offer
should be permitted and (C) diligently pursuing a resolution (which need not be favorable)
by the Commission staff.
(ii) As a condition to its participation in the Exchange Offer, each Holder of Transfer
Restricted Securities (including, without limitation, any such Holder who is a Broker
Dealer) shall furnish, upon the request of the Company, prior to the Consummation of the
Exchange Offer, a written representation to the Company and the Guarantors (which may be
contained in the letter of transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an Affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or understanding with
any person to participate in, a distribution of the Series B Notes to be issued in the
Exchange Offer and (C) it is acquiring the Series B
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Notes in its ordinary course of business. As a condition to its participation in the
Exchange Offer each Holder using the Exchange Offer to participate in a distribution of the
Series B Notes shall acknowledge and agree that, if the resales are of Series B Notes
obtained by such Holder in exchange for Series A Notes acquired directly from the Company or
an Affiliate thereof, it (1) could not, under Commission policy as in effect on the date of
this Agreement, rely on the position of the Commission enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission’s letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters (including, if applicable,
any no-action letter obtained pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Act in connection with a secondary
resale transaction and that such a secondary resale transaction must be covered by an
effective registration statement containing the selling security holder information required
by Item 507 or 508, as applicable, of Regulation S-K.
(iii) To the extent required by Commission policies and procedures, prior to
effectiveness of the Exchange Offer Registration Statement, the Company and the Guarantors
shall provide a supplemental letter to the Commission (A) stating that the Company and the
Guarantors are registering the Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available May 13, 1988),
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) as interpreted in the
Commission’s letter to Shearman & Sterling dated July 2, 1993, and, if applicable,
any no-action letter obtained pursuant to clause (i) above, (B) including a representation
that neither the Company nor any Guarantor has entered into any arrangement or understanding
with any Person to distribute the Series B Notes to be received in the Exchange Offer and
that, to the best of the Company’s and each Guarantor’s information and belief, each Holder
participating in the Exchange Offer is acquiring the Series B Notes in its ordinary course
of business and has no arrangement or understanding with any Person to participate in the
distribution of the Series B Notes received in the Exchange Offer and (C) any other
undertaking or representation required by the Commission as set forth in any no-action
letter obtained pursuant to clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with any Shelf Registration Statement,
the Company and the Guarantors shall:
(i) comply with all the provisions of Section 6(c) below and use commercially
reasonable efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or methods of
distribution thereof (as indicated in the information furnished to the Company pursuant to
Section 4(b) hereof), and pursuant thereto the Company and the Guarantors will prepare and
file with the Commission a Registration Statement relating to such registration on any
appropriate form under the Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of distribution
thereof as described in the relevant section of the Exchange Offer
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Registration Statement then in effect, within the time periods and otherwise in
accordance with the provisions hereof, and
(ii) issue, upon the request of any Holder or purchaser of Series A Notes covered by
any Shelf Registration Statement contemplated by this Agreement, Series B Notes having an
aggregate principal amount equal to the aggregate principal amount of Series A Notes sold
pursuant to the Shelf Registration Statement and surrendered to the Company for
cancellation; the Company shall register Series B Notes on the Shelf Registration Statement
for this purpose and issue the Series B Notes to the purchaser(s) of securities subject to
the Shelf Registration Statement in the names such purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration Statement and any related
Prospectus required by this Agreement, the Company and the Guarantors shall:
(i) use commercially reasonable efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for the period
specified in Section 3 or 4 of this Agreement, as applicable. Upon the occurrence of any
event that would cause any such Registration Statement or the Prospectus contained therein
(A) to contain an untrue statement of material fact or omit to state any material fact
necessary to make the statements therein not misleading or (B) not to be effective and
usable for resale of Transfer Restricted Securities as described in the relevant section of
the Exchange Offer Registration Statement then in effect, during the period required by this
Agreement, the Company and the Guarantors shall file promptly an appropriate amendment to
such Registration Statement curing such defect, and, if Commission review is required, use
commercially reasonable efforts to cause such amendment to be declared effective as soon as
practicable. If at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities or Blue Sky laws,
the Company and the Guarantors shall use commercially reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(ii) prepare and file with the Commission such amendments and post-effective amendments
to the applicable Registration Statement as may be necessary to keep such Registration
Statement effective for the applicable period set forth in Section 3 or 4 hereof, as the
case may be; cause the Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully
with Rules 424, 430A and 462, as applicable, under the Act in a timely manner; and comply
with the provisions of the Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in accordance with the intended
method or methods of distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise each Holder promptly and, if requested by such Holder, confirm such advice
in writing, (A) when the Prospectus or any Prospectus supplement or post-
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effective amendment has been filed, and, with respect to any applicable Registration
Statement or any post-effective amendment thereto, when the same has become effective, (B)
of any request by the Commission for amendments to the Registration Statement or amendments
or supplements to the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state securities commission
of the qualification of the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding purposes, (D) of
the existence of any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any amendment or
supplement thereto or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Registration Statement in order to
make the statements therein not misleading, or that requires the making of any additions to
or changes in the Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(iv) subject to Section 6(c)(i), if any fact or event contemplated by Section
6(c)(iii)(D) above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter delivered to
the purchasers of Transfer Restricted Securities, the Prospectus will not contain 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; notwithstanding the foregoing, the Company shall not be required to amend or
supplement a Registration Statement, any related prospectus or any document incorporated by
reference, for a period not to exceed an aggregate of 30 days in any calendar year, if (i)
an event occurs and is continuing as a result of which the Registration Statement would, in
the Company’s good faith judgment, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading and (ii) the board of directors of the
Company determines in its good faith judgment that the disclosure of such event at such time
would have a material adverse effect on the business or operations of the Company;
(v) with respect to a Shelf Registration Statement, furnish to each Holder in
connection with such exchange or sale, if any, before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration Statement), which
documents will be subject to the review and comment of such Holders in connection with such
sale, if any, for a period of at least three Business Days, and the Company will not file
any such Registration Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents incorporated by
reference) to which such Holders shall reasonably object within three Business Days after
the receipt thereof. A Holder shall be deemed to have reasonably objected to such filing if
such Registration Statement, amendment, Prospectus or
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supplement, as applicable, as proposed to be filed, contains an untrue statement of a
material fact or omit to state any material fact necessary to make the statements therein
not misleading or fails to comply with the applicable requirements of the Act;
(vi) promptly prior to the filing of any document that is to be incorporated by
reference into a Registration Statement or Prospectus, provide copies of such document to
the Initial Purchasers and each Holder in connection with such exchange or sale, if any,
make the Company’s and the Guarantors’ representatives available for discussion of such
document and other customary due diligence matters, and include such information in such
document prior to the filing thereof as such Holders may reasonably request;
(vii) make available for inspection by each person who would be an “underwriter” as a
result of either (i) the sale by such person of Series A Notes covered by such Shelf
Registration Statement or (ii) the sale during the period referred to in Section 3(c) above
by a Broker-Dealer of Series B Notes (provided that a Broker-Dealer shall not be deemed to
be an underwriter solely as a result of it being required to deliver a prospectus in
connection with any resale of Series B Notes) and any attorney, accountant or other agent
retained by any such person (collectively, the “Inspectors”), at the offices where
normally kept, during reasonable business hours, all financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries (collectively, the
“Records”) as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the officers, directors and employees
of the Company and its subsidiaries to supply all information in each case reasonably
requested by any such Inspector in connection with such Registration Statement. Records
which the Company determines, in good faith, to be confidential and any Records which it
notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a material misstatement or
omission in such Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction or (iii) the
information in such Records has been generally available to the public. Each selling Holder
of such Transfer Restricted Securities and each such Broker-Dealer will be required to agree
that information obtained by it as a result of such inspections shall be deemed confidential
and shall not be used by it as the basis for any market transactions in the securities of
the Company unless and until such information is made generally available to the public.
Each selling Holder of such Transfer Restricted Securities and each such Broker-Dealer will
be required to further agree that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company and allow the
Company at its expense to undertake appropriate action to prevent disclosure of the Records
deemed confidential;
(viii) if requested by any Holders of Transfer Restricted Securities in connection with
such exchange or sale, promptly include in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such information as such
Holders may reasonably request to have included therein concerning themselves, including,
without limitation, information relating to the “Plan of Distribution” concerning their
Transfer Restricted Securities; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable
11
after the Company is notified of the matters to be included in such Prospectus
supplement or post-effective amendment;
(ix) furnish to each Holder of Transfer Restricted Securities in connection with such
exchange or sale without charge, at least one copy of the Registration Statement, as first
filed with the Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits incorporated therein
by reference);
(x) deliver to each Holder of Transfer Restricted Securities without charge, as many
copies of the Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Holder reasonably may request; the Company and the Guarantors
hereby consent to the use (in accordance with law) of the Prospectus and any amendment or
supplement thereto by each selling Holder in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement
thereto;
(xi) upon the request of any Holder of Transfer Restricted Securities, enter into such
agreements (including underwriting agreements) and make such representations and warranties
and take all such other actions in connection therewith in order to expedite or facilitate
the disposition of the Transfer Restricted Securities pursuant to any applicable
Registration Statement contemplated by this Agreement as may be reasonably requested by such
Holder in connection with any sale or resale pursuant to any applicable Registration
Statement. In such connection, the Company and the Guarantors shall:
(A) upon request of such Holder, furnish (or in the case of paragraphs (2) and
(3), use commercially reasonable efforts to cause to be furnished) to such Holder,
upon Consummation of the Exchange Offer or upon the effectiveness of the Shelf
Registration Statement, as the case may be:
(1) a certificate, dated such date, signed on behalf of the Company and
each Guarantor by (x) the President or any Vice President of the Company and
such Guarantor and (y) a principal financial or accounting officer of the
Company and such Guarantor, confirming, as of the date thereof, the matters
set forth in Section 1(a)(iv) 5 of the Purchase Agreement and such other
similar matters as such Holder may reasonably request;
(2) an opinion, dated the date of Consummation of the Exchange Offer or
the date of effectiveness of the Shelf Registration Statement, as the case
may be, of counsel for the Company and the Guarantors covering matters
similar to those set forth in paragraphs (a) through (d) of Section 5 of the
Purchase Agreement and such other matters as such Holder may reasonably
request, and in any event including a statement to the effect that such
counsel has participated in conferences with officers and other
representatives of the Company and the Guarantors, representatives of the
independent public accountants for the
12
Company and the Guarantors and have considered the matters required to
be stated therein and the statements contained therein, although such
counsel has not independently verified the accuracy, completeness or
fairness of such statements; and that such counsel advises that, on the
basis of the foregoing (relying as to materiality to the extent such counsel
deems appropriate upon the statements of officers and other representatives
of the Company and the Guarantors and without independent check or
verification), no facts came to such counsel’s attention that caused such
counsel to believe that the applicable Registration Statement, at the time
such Registration Statement or any post-effective amendment thereto became
effective and, in the case of the Exchange Offer Registration Statement, as
of the date of Consummation of the Exchange Offer, 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 that the Prospectus contained in such Registration Statement
as of its date and, in the case of the opinion dated the date of
Consummation of the Exchange Offer, as of the date of Consummation,
contained an untrue statement of a material fact or omitted 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.
Without limiting the foregoing, such counsel may state further that such
counsel assumes no responsibility for, and has not independently verified,
the accuracy, completeness or fairness of the financial statements, notes
and schedules and other financial data included in any Registration
Statement contemplated by this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the date of Consummation of the
Exchange Offer, or as of the date of effectiveness of the Shelf Registration
Statement, as the case may be, from the Company’s independent accountants,
in the customary form and covering matters of the type customarily covered
in comfort letters to underwriters in connection with underwritten
offerings, and affirming the matters set forth in the comfort letters
delivered pursuant to Sections 5(g) and (h) of the Purchase Agreement; and
(B) deliver such other documents and certificates as may be reasonably
requested by the selling Holders to evidence compliance with the matters covered in
clause (A) above and with any customary conditions contained in any agreement
entered into by the Company and the Guarantors pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted Securities, cooperate with
the selling Holders and their counsel in connection with the registration and qualification
of the Transfer Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all other acts or things
necessary to enable the disposition in such jurisdictions of the Transfer Restricted
13
Securities covered by the applicable Registration Statement; provided, however, that
neither the Company nor any Guarantor shall be required to register or qualify as a foreign
corporation or broker dealer where it is not now so qualified or to take any action that
would subject it to the service of process in suits, other than as to matters and
transactions relating to the Registration Statement or to taxation, in any jurisdiction
where it is not now so subject;
(xiii) in connection with any sale of Transfer Restricted Securities that will result
in such securities no longer being Transfer Restricted Securities, cooperate with the
Holders to facilitate the timely preparation and delivery of certificates representing
Transfer Restricted Securities to be sold and not bearing any restrictive legends; and to
register, subject to compliance with the Indenture, such Transfer Restricted Securities in
such denominations and such names as the selling Holders may request at least two Business
Days prior to such sale of Transfer Restricted Securities;
(xiv) use commercially reasonable efforts to cause the disposition of the Transfer
Restricted Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause (xii) above;
(xv) provide a CUSIP number for all Transfer Restricted Securities not later than the
effective date of a Registration Statement covering such Transfer Restricted Securities and
provide the Trustee under the Indenture with certificates for the Transfer Restricted
Securities which are in a form eligible for deposit with the Depository Trust Company;
(xvi) otherwise use commercially reasonable efforts to comply with all applicable rules
and regulations of the Commission, and make generally available to its security holders with
regard to any applicable Registration Statement, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not be audited) covering
a twelve-month period beginning after the effective date of the Registration Statement (as
such term is defined in paragraph (c) of Rule 158 under the Act);
(xvii) cause the Indenture to be qualified under the TIA not later than the effective
date of the first Registration Statement required by this Agreement and, in connection
therewith, cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute and use commercially reasonable efforts to cause the Trustee
to execute, all documents that may be required to effect such changes and all other forms
and documents required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner; in the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a new trustee
pursuant to the applicable provisions of the Indenture, and
14
(xviii) provide promptly to each Holder, upon request, each document filed with the
Commission pursuant to the requirements of Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of the notice referred to in Section 6(c)(iii)(B) or (C) or
any notice from the Company of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof (in each case, a “Suspension Notice”), such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the applicable Registration
Statement until (i) such Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is advised in writing by the Company
that the use of the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus (in each case, the
“Recommencement Date”). Each Holder receiving a Suspension Notice hereby agrees that it
will either (i) destroy any Prospectuses, other than permanent file copies, then in such Holder’s
possession which have been replaced by the Company with more recently dated Prospectuses or (ii)
deliver to the Company (at the Company’s expense) all copies, other than permanent file copies,
then in such Holder’s possession of the Prospectus covering such Transfer Restricted Securities
that was current at the time of receipt of the Suspension Notice. The time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by a number of days equal to the number of days in the period from and including
the date of delivery of the Suspension Notice to the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company’s and the Guarantors’ performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a Registration Statement
becomes effective, including without limitation: (i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and state Blue Sky or securities
laws; (iii) all expenses of printing (including printing certificates for the Series B Notes to be
issued in the Exchange Offer and printing of Prospectuses), messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company, the Guarantors and the
Holders of the Transfer Restricted Securities; (v) all application and filing fees in connection
with listing the Series B Notes on a national securities exchange or automated quotation system
pursuant to the requirements hereof; and (vi) all fees and disbursements of independent certified
public accountants of the Company and the Guarantors (including the expenses of any special audit
and comfort letters required by or incident to such performance).
The Company will, in any event, bear its and the Guarantors’ internal expenses (including,
without limitation, all salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company or the Guarantors.
(b) In connection with any Registration Statement required by this Agreement (including,
without limitation, the Exchange Offer Registration Statement and the Shelf Registration
Statement), the Company and the Guarantors will reimburse the Initial Purchasers and the Holders of
Transfer Restricted Securities who are tendering Series A Notes in the
15
Exchange Offer and/or selling or reselling Series A Notes or Series B Notes pursuant to the
“Plan of Distribution” contained in the Exchange Offer Registration Statement or the Shelf
Registration Statement, as applicable, for the reasonable fees and disbursements of not more than
one counsel, who shall be ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, unless another firm shall be chosen by the Holders
of a majority in principal amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared. Except as otherwise provided in this Section 7, each
Holder shall pay all expenses of its counsel, underwriting discounts and commissions, and transfer
taxes, if any, relating to the sale or disposition of such Holder’s Transfer Restricted Securities
pursuant to any Registration Statement.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and severally, to indemnify and hold
harmless each Holder, its directors, officers and each Person, if any, who controls such Holder
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act), from and against
any and all losses, claims, damages, liabilities, judgments, (including without limitation, any
reasonable legal or other expenses incurred in connection with investigating or defending any
matter, including any action that could give rise to any such losses, claims, damages, liabilities
or judgments) caused by any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, preliminary prospectus or Prospectus (or any amendment or
supplement thereto) provided by the Company to any Holder or any prospective purchaser of Series B
Notes or registered Series A Notes, 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, provided, however, that the foregoing indemnity agreement shall not inure to the
benefit of any Holder, its directors, officers and employees, and each person, if any, who controls
such Holder within the meaning of the Act and the Exchange Act (i) who, in contravention of a
requirement of applicable law, failed to deliver, or otherwise convey the information contained in,
any Prospectus (as then amended or supplemented) to the person asserting any losses, claims,
damages, liabilities or judgments, caused by any untrue statement or alleged untrue statement of a
material fact contained in any preliminary Prospectus, 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, if such material misstatement or omission or alleged material
misstatement or omission was cured in the Prospectus (as then amended or supplemented) and such
Prospectus was required by law to be delivered at or prior to the written confirmation of sale to
such person and the Prospectus and any amendment or supplement thereto was provided by the Company
to the Holder in the requisite quantity and on a timely basis to permit proper delivery on or prior
to the closing of such sale by such Holder; or (ii) if such losses, claims, damages, liabilities or
judgments are caused by an untrue statement or omission or alleged untrue statement or omission
that is based upon information relating to any of the Holders furnished in writing to the Company
by any such Holders.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Guarantors, and their respective directors and
officers, and each person, if any, who controls (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Company, or the Guarantors to the same extent as the foregoing
indemnity from the Company and the Guarantors set forth in Section (a) above, but
16
only with reference to information relating to such Holder furnished in writing to the Company
by such Holder expressly for use in any Registration Statement. In no event shall any Holder, its
directors, officers or any Person who controls such Holder be liable or responsible for any amount
in excess of the amount by which the total amount received by such Holder with respect to its sale
of Transfer Restricted Securities pursuant to a Registration Statement exceeds (i) the amount paid
by such Holder for such Transfer Restricted Securities and (ii) the amount of any damages that such
Holder, its directors, officers or any Person who controls such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in respect of which indemnity
may be sought pursuant to Section 8(a) or 8(b) (the “indemnified party”), the indemnified
party shall promptly notify the person against whom such indemnity may be sought (the
“indemnifying person”) in writing and the indemnifying party shall assume the defense of
such action, including the employment of counsel reasonably satisfactory to the indemnified party
and the payment of all reasonable fees and expenses of such counsel, as incurred (except that in
the case of any action in respect of which indemnity may be sought pursuant to both Sections 8(a)
and 8(b), a Holder shall not be required to assume the defense of such action pursuant to this
Section 8(c), but may employ separate counsel and participate in the defense thereof, but the fees
and expenses of such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the indemnifying party shall
have failed to assume the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any impleaded parties)
include both the indemnified party and the indemnifying party, and the indemnified party shall have
been advised by such counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by a majority of the Holders, in the case of the parties indemnified pursuant
to Section 8(a), and by the Company and the Guarantors, in the case of parties indemnified pursuant
to Section 8(b). The indemnifying party shall indemnify and hold harmless the indemnified party
from and against any and all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with the indemnifying party’s written consent or (ii)
effected without the indemnifying party’s written consent if the settlement is entered into more
than 30 Business Days after the indemnifying party shall have received a request from the
indemnified party for reimbursement for the fees and expenses of counsel (in any case where such
fees and expenses are at the expense of the indemnifying party) and, prior to the date of such
settlement, the indemnifying party shall have failed to comply with such reimbursement request.
No indemnifying party shall, without the prior written consent of the indemnified party, effect any
settlement or
17
compromise of, or consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified party, unless such
settlement, compromise or judgment (i) includes an unconditional release of the indemnified party
from all liability on claims that are or could have been 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 the indemnified party.
(d) To the extent that the indemnification provided for in this Section 8 is unavailable to an
indemnified party in respect of any losses, claims, damages, liabilities or judgments referred to
therein, then each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or judgments (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors, on the one hand, and the Holders, on
the other hand, from their sale of Transfer Restricted Securities or (ii) if the allocation
provided by clause 8(d)(i) is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative
fault of the Company and the Guarantors, on the one hand, and of the Holder, on the other hand, in
connection with the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable considerations. The relative
fault of the Company and the Guarantors, on the one hand, and of the Holder, on the other hand,
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 such Guarantor, on the one hand, or by the Holder, on the
other hand, and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a party as a result
of the losses, claims, damages, liabilities and judgments referred to above shall be deemed to
include, subject to the limitations set forth in Section 8(a), any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending any action or
claim.
The Company, the Guarantors and each Holder agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the
Holders were treated as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any
matter, including any action that could have given rise to such losses, claims, damages,
liabilities or judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the total received by
such Holder with respect to the sale of Transfer Restricted Securities pursuant to a Registration
Statement exceeds (i) the amount paid by such Holder for such Transfer Restricted Securities and
(ii) the amount of any damages which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
18
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 Holders’ obligations to contribute pursuant to this Section 8(c) are
several in proportion to the respective principal amount of Transfer Restricted Securities held by
each Holder hereunder and not joint.
SECTION 9. RULE 144A AND RULE 144
The Company and each Guarantor agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company and such Guarantor (i) is
not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon request of any
Holder, to such Holder or beneficial owner of Transfer Restricted Securities in connection with any
sale thereof and any prospective purchaser of such Transfer Restricted Securities designated by
such Holder or beneficial owner, the information required by Rule 144A(d)(4) under the Act in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144A, and (ii) is subject
to Section 13 or 15 (d) of the Exchange Act, to make all filings required thereby in a timely
manner in order to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and agree that any failure
by the Company and/or the Guarantors to comply with their respective obligations under Sections 3
and 4 hereof may result in material irreparable injury to the Initial Purchasers or the Holders for
which there is no adequate remedy at law, that it will not be possible to measure damages for such
injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder
may obtain such relief as may be required to specifically enforce the Company’s and the Guarantor’s
obligations under Sections 3 and 4 hereof. The Company and the Guarantors further agree to waive
the defense in any action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any Guarantor will, on or
after the date of this Agreement, enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. The Company and the Guarantors represent and warrant to the Holders that
the rights granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company’s and the Guarantors’ securities
under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the provisions hereof may
not be given unless (i) in the case of Section 5 hereof and this Section 10(c)(i), the Company has
obtained the written consent of Holders of all outstanding Transfer Restricted Securities and (ii)
in the case of all other provisions hereof, the Company has obtained the written consent of Holders
of a majority of the outstanding principal amount of Transfer Restricted Securities (excluding
Transfer Restricted Securities held by the Company or its Affiliates). Notwithstanding the
foregoing, a waiver or consent to departure from the provisions
19
hereof that relates exclusively to the rights of Holders whose Transfer Restricted Securities
are being tendered pursuant to the Exchange Offer, and that does not affect directly or indirectly
the rights of other Holders whose Transfer Restricted Securities are not being tendered pursuant to
such Exchange Offer, may be given by the Holders of a majority of the outstanding principal amount
of Transfer Restricted Securities subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party beneficiaries to the
agreements made hereunder between the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the
extent they may deem such enforcement necessary or advisable to protect the rights of Holders
hereunder.
(e) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such Holder to the Company in
accordance with the provisions of this Section 10(e), which address initially is, with
respect to each Holder, the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and
(ii) if to the Company or the Guarantors:
STATS ChipPac Ltd.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇-▇▇▇▇
Attention: Legal Department
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇-▇▇▇▇
Attention: Legal Department
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
#▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
#▇▇-▇▇ ▇▇▇ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇) ▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and on the next Business Day,
if timely delivered to an air courier guaranteeing overnight delivery.
The Company, by notice to the Registrar, may designate additional or different addresses for
subsequent notices or communications.
Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address specified in the Indenture.
20
The Company shall notify the Representatives, on the date of the Exchange Offer Registration
Statement or a Shelf Registration Statement, as the case may be, is filed with the Commission.
(f) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including without limitation and
without the need for an express assignment, subsequent Holders; provided, that nothing herein shall
be deemed to permit any assignment, transfer or other disposition of Transfer Restricted Securities
in violation of the terms hereof or of the Purchase Agreement or the Indenture. If any transferee
of any Holder shall acquire Transfer Restricted Securities in any manner, whether by operation of
law or otherwise, such Transfer Restricted Securities shall be held subject to all of the terms of
this Agreement, and by taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including any restrictions on resale set forth in this Agreement, the Purchase
Agreement, and the Indenture, and such Person shall be entitled to receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) Jurisdiction. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY AND
EACH GUARANTOR IRREVOCABLY AGREES THAT ANY LEGAL SUIT, ACTION OR PROCEEDING BROUGHT BY ANY INITIAL
PURCHASER, ANY HOLDER OR BY ANY PERSON WHO CONTROLS SUCH HOLDER OR THE TRUSTEE ON BEHALF OF SUCH
HOLDER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE
INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE BOROUGH OF MANHATTAN, THE CITY OF NEW YORK, NEW
YORK, AND IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH
A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, AND IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(k) Waiver of Immunity. To the extent that the Company or any of the Guarantors has
or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or
proceeding, from jurisdiction of any court or from set-off or any legal process (whether
21
service or notice, attachment in aid or otherwise) with respect to itself or any of its
property, the Company and each of the Guarantors hereby irrevocably waives and agrees not to plead
or claim such immunity in respect of its obligations under this Agreement.
(l) Process Agent. The Company and each Guarantor has appointed CT Corporation System
(the “Process Agent”), as its agent to receive on its behalf service of copies of the
summons and complaints and any other process which may be served in any suit, action or proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby brought in
such New York State or federal court sitting in The City of New York. The Company and each
Guarantor further agrees to take any and all action as may be necessary to maintain such
designation and appointment of such agent in full force and effect for a period of five years from
the date of this Agreement. Such service may be made by delivering a copy of such process to the
Company or any Guarantor in care of the Process Agent at the address for the Process Agent and
obtaining a receipt therefor, and the Company and each Guarantor hereby irrevocably authorizes and
directs such Process Agent to accept such service on its behalf. The Company and each Guarantor
represents and warrants that the Process Agent has agreed to act as said agent for service of
process, and agrees that service of process in such manner upon the Process Agent shall be deemed,
to the fullest extent permitted by applicable law, in every respect effective service of process
upon the Company and each Guarantor in any such suit, action or proceeding.
(m) Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
(n) Entire Agreement. This Agreement is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
[Signature Pages Follow]
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
| STATS CHIPPAC LTD. | ||||
| By | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Chief Financial Officer | |||
| STATS CHIPPAC, INC. | ||||
| By | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Vice President, Treasurer and Chief Financial Officer | |||
| STATS CHIPPAC TEST SERVICES, INC. | ||||
| By | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Authorized Signatory | |||
| STATS HOLDINGS LIMITED | ||||
| By | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Authorized Signatory | |||
| STATS CHIPPAC (BARBADOS) LTD. | ||||
| By | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Authorized Signatory | |||
[Signature Pages to Registration Rights Agreement]
| STATS CHIPPAC (BVI) LIMITED | ||||
| By | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Authorized Signatory | |||
| STATS CHIPPAC MALAYSIA SDN. BHD. | ||||
| By | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Authorized Signatory | |||
| CHIPPAC INTERNATIONAL COMPANY LIMITED | ||||
| By | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Authorized Signatory | |||
| CHIPPAC LUXEMBOURG S.A.R.L. | ||||
| By | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Authorized Signatory | |||
| CHIPPAC LIQUIDITY MANAGEMENT HUNGARY LIMITED LIABILITY COMPANY | ||||
| By | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Managing Director | |||
[Signature Pages to Registration Rights Agreement]
| CREDIT SUISSE FIRST BOSTON (SINGAPORE) LIMITED | ||||||
| DEUTSCHE BANK AG, SINGAPORE BRANCH | ||||||
| BY: CREDIT SUISSE FIRST BOSTON (SINGAPORE) LIMITED | ||||||
| For itself and as Representative of the other Initial Purchasers | ||||||
By:
|
/s/ ▇▇▇▇▇ ▇▇▇ | /s/ ▇▇▇ ▇▇▇▇ | ||||
| Name: | ▇▇▇▇▇ ▇▇▇ | ▇▇▇ ▇▇▇▇ | ||||
| Title: | Managing Director | Managing Director | ||||
| Legal & Compliance Department | ||||||
| BY: DEUTSCHE BANK AG, SINGAPORE BRANCH | ||||||
| For itself and as Representative of the other Initial Purchasers | ||||||
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇ | |||||
| Title: | Director | |||||
By:
|
/s/ ▇▇▇▇▇▇▇ Court | |||||
| Name: | ▇▇▇▇▇▇▇ Court | |||||
| Title: | Director | |||||
[Signature Pages to Registration Rights Agreement]