EXHIBIT 10.84
RESTRUCTURING, SETTLEMENT
AND MUTUAL RELEASE AGREEMENT
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This Restructuring, Settlement and Mutual Release Agreement (this
"Agreement") is entered into as of this 24th day of September, 1998 the
"Effective Date", by and among Microelectronic Packaging, Inc. ("MPI"), on
behalf of itself and its predecessors, successors, former or current
subsidiaries, affiliates, officers, directors, shareholders, agents, attorneys,
representatives, insurers, employees and assigns (collectively with MPI, the
"MPI Releasees"), and STMicroelectronics Inc. (formerly known as SGS-Thomson
Microelectronics, Inc.) (hereinafter "ST"), assignee of STMicroelectronics Pte.
Ltd. (formerly known as SGS-Thomson Microelectronics, Pte. Ltd.) (hereinafter
"ST-Singapore") and its predecessors, successors, subsidiaries, affiliates,
officers, directors, stockholders, agents, attorneys, representatives, insurers,
employees and assigns (collectively with ST, the "ST Releasees").
W I T N E S S E T H:
WHEREAS, pursuant to a Supply Guarantee and Preferred Allocation
Agreement dated August 17, 1995 by and among MPI, Microelectronic Packaging (S)
Pte Ltd ("MPS") and ST-Singapore (including the Charge agreement executed by MPS
pursuant thereto, collectively, the "Initial Loan Agreement"), ST-Singapore made
a lump sum advance in the amount of US$4.0 million to MPS, a subsidiary of MPI,
upon which certain interest amounts were thereafter due and payable periodically
under the Initial Loan Agreement as amended by Supplemental Agreement to the
Supply Guarantee and Preferred Allocation Agreement dated August 17, 1995, which
Supplemental Agreement was itself dated October 19, 1995 (collectively with the
Initial Loan Agreement, the "Loan Agreement");
WHEREAS, MPI entered into a Deed of Guarantee and Indemnity dated
August 17, 1995 with ST-Singapore (the "Guarantee"), pursuant to which MPI
agreed to guaranty the obligations of MPS under the Loan Agreement;
WHEREAS, MPS has defaulted on its obligations under the Loan Agreement
giving rise to MPI's obligations under the Guarantee; and
WHEREAS, ST-Singapore has assigned its rights under the Loan Agreement
and Guarantee to ST; and
WHEREAS, the parties wish to settle all obligations under the Loan
Agreement and the Guarantee, and terminate and release all rights and
obligations under such documents and all other related agreements, and settle
all other disputes that may exist between MPI and each of the other MPI
Releasees, and ST and each of the other ST Releasees.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and sufficient consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. General Release, Covenants and Settlement.
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a. Release Waiver and Covenant. ST, on behalf of itself and the
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other ST Releasees, hereby agrees as follows:
i. Release. On the Release Date (as defined in Section 1.d),
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ST, on behalf of itself and each other ST Releasee, will fully and forever
release and discharge each of the MPI Releasees from and against any and all
claims, damages and causes of action they may have against each such person or
entity and will not ▇▇▇ or otherwise institute or cause to be instituted or in
any way participate in any legal, administrative or regulatory proceedings
against any of the MPI Releasees (in which they or any of them are claimants)
with respect to (a) any matter under the provisions of, arising out of or in
connection with, the Loan Agreement and the Guarantee and any of their
respective related agreements, letters, documents and instruments, including any
breach of any representation or warranty or noncompliance or nonfulfillment of
any covenant or agreement set forth in such financing or loan documents, (b) any
and all claims, demands, debts, causes of action of whatsoever kind or nature,
whether known or unknown, suspended or unsuspended, matured or unmatured which
ST or any ST Releasee now owns or holds against any of the MPI Releasees or have
at any time heretofore owned or held, and (c) the Confession of Judgment
Documents (as defined in Section 1.d.i.(2) below); provided, however, that the
foregoing release and waiver should in no way be interpreted as a release from
any claim or cause of action ST may have as a result of any breach of the
warrant.
ii. Waiver. On the Release Date, ST on behalf of itself and
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each other ST Releasee will waive any rights it may have had or then has to
pursue any and all remedies available to it under any cause of action against
any other party to this Agreement, including each subsidiary of ST, pursuant to,
in connection with, or arising out of the Loan Agreement, the Guarantee and all
related agreements, letters, documents, and instruments, including without
limitation, claims of breach of contract, breach of fiduciary duty, fraud, and
breach of the covenant of good faith and fair dealing.
iii. Termination of the Loan Agreement, the Guarantee and all
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Related Agreements. ST agrees that, on the Release Date, each of the Loan
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Agreement, the Guarantee and the Confession of Judgment Documents, and each of
their respective related agreements, letters, documents and instruments,
regardless of whether they are in default, will be fully and completely
terminated and rendered devoid of legal effect and unenforceable, such that even
provisions of the Loan Agreement, the Guarantee, the Confession of Judgment
Documents (as defined in Section 1.d.i.(2) below) and all related agreements,
letters, documents and instruments that, according to their terms, survive
termination, will be terminated and nullified. Further, ST hereby acknowledges
and agrees that, on the Release Date, any loan, debt, liability or other
obligation evidenced by the Confession of Judgment Documents (as defined in
Section 1.d.i.(2) below) or otherwise created pursuant to or arising out of the
Loan Agreement or the Guarantee, as well as any writings, agreements, notes or
certificates representing such loan, debt, liability or obligations, will be
automatically cancelled and rendered devoid of force and effect.
iv. Payment in Full. Assuming ST is paid in full pursuant to
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section 1.d.i(1) ST hereby acknowledges and agrees that, on the Release Date and
thereafter,
(1) the only payments and benefits they are entitled to
receive
from any and all of the MPI Releasees are those specified in Sections
1.b. and 1.c. of this Agreement; and
(2) they are not entitled to receive any further
monetary payments from any and all of the MPI Releasees pursuant to, in
connection with, or arising out of the Confession of Judgment Documents (as
defined in Section 1.d.i.(2) below), the Loan Agreement or the Guarantee, or any
of their respective related agreements, letters, documents and instruments.
b. Release Waiver and Covenants. MPI, on behalf of itself and the
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other MPI Releasees, hereby agree as follows:
i. Release. On the Effective Date MPI, on behalf of itself
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and each other MPI Releasee, will have fully and forever released and discharged
each of the ST Releasees from any claims, damages, and causes of action it or
they may have had against any of them and will not ▇▇▇ or otherwise institute or
cause to be instituted or any way participate in legal, administrative or
regulatory proceeding against any of the ST Releasees (in which it or any of
them are claimants) with respect to (a) any matter under the provisions of,
arising out of or in connection with the Loan Agreement, the Guarantee and any
of their respective related agreements, letters, documents and instruments, and
(b) any and all claims, demands, debts, causes of action of whatsoever kind or
nature, whether known or unknown, suspended or unsuspended, matured or unmatured
which the MPI or any MPI Releasee now owns or holds against any of the ST
Releasees or have at any time heretofore owned or held.
ii. Waiver. On the Release Date, MPI, on behalf of itself and
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each other MPI Releasee will waive any rights it may have had or then has to
pursue any and all remedies available to it under any cause of action against
any other party to this Agreement, including each subsidiary of MPI, pursuant
to, in connection with, or arising out of the Loan Agreement, the Guarantee and
all related agreements, letters, documents, and instruments, including without
limitation, claims of breach of contract, breach of fiduciary duty, fraud, and
breach of the covenant of good faith and fair dealing.
iii. Termination of the Loan Agreement, the Guarantee and all
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Related Agreements. MPI hereby acknowledges and agrees that, on the Release
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Date, each of the Loan Agreement, the Guarantee and each of their respective
related agreements, letters, documents and instruments will be fully and
completely terminated and rendered devoid of force and effect, such that even
provisions of the Loan Agreement, the Guarantee and each of their respective
related agreements, letters, documents and instruments that, according to their
terms, survive termination, will be automatically terminated and nullified.
iv. Payment in Full. MPI acknowledges and agrees that on the
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Effective Date and thereafter the only payments and benefits it is entitled to
receive from the ST Releasees are those specified in Sections 1.a. and 1.c. of
this Agreement.
c. Mutual Agreements and Covenants.
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No party to this Agreement shall, except as may be mandated by
statutory or regulatory requirements, as may be required by legal process in the
course of actual litigation or in the case of a subpoena, or as may be necessary
for MPI to negotiate an accommodation with
its creditors, disclose to others the fact or terms of this settlement, the
amounts referred to in this Agreement or the fact of the payment of said
amounts, except that each such party may disclose to each such party's
attorneys, accountant or other advisors to whom the disclosure is necessary to
effectuate the purposes for which such party has consulted with such
professional advisors and except that MPI may file this Agreement with any
governmental or regulatory body, describe it and refer to it in any filing it
makes pursuant to federal and state securities laws or to its Board of Directors
or shareholders.
d. Settlement and Payment. In settlement of all defaults, amounts
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owed, debts, liabilities and other obligations pursuant to, in connection with,
or arising out of the Loan Agreement, the Guarantee and each of their respective
related agreements, letters, documents and instruments:
i. (1) MPI will pay to ST by no later than May 1, 1999 an amount
of US$1,137,044, by wire transfer to ST, in accordance with written wire
transfer instructions it will receive from ST. The date upon which MPI makes
payment in full of the balance of the amount due to ST pursuant to the preceding
sentence shall be the "Release Date." If such payment occurs after May 1, 1999,
there will be no "Release Date" for purposes of this Agreement.
(2) Concurrent with the execution of this Agreement, MPI
will deliver to ST fully executed and verified original Confession of Judgment
Documents conforming to those attached as Exhibit A hereto confessing judgment
in the amount of U.S. Four Million Dollars ($4,000,000) plus interest and costs.
▇▇▇▇▇▇ ▇. ▇▇▇▇, ST Vice President, Secretary and General Counsel, or his
successor, shall retain the Confession of Judgment Documents on behalf of ST and
shall have responsibility for using the Confession of Judgment Documents only in
accord with this Agreement. If and when MPI makes full, complete and timely
payment of the settlement amount set forth in Section 1(d)(i)(1) above to ST, ST
shall return the Confession of Judgment Documents to MPI. If MPI fails to make
full, complete and timely payment of the settlement amount referenced in Section
1(d)(i)(1) above to ST, ST shall give MPI written notice of MPI's payment
default and demand for cure and performance within 72 hours. If MPI cures its
default within 72 hours of such notices, ST will return the Confession of
Judgment Documents to MPI. If MPI fails to fully, completely and timely cure its
payment default following notice from ST, then ST shall be entitled to
immediately submit the Confession of Judgment Documents to the court and obtain
entry of judgment in accord with the Confession of Judgment Documents without
further notice to MPI.
(3) If MPI fails to make timely, full payment of the
settlement payment set forth in Section 1(d)(i)(1) above, and for any reason ST
is unable to successfully obtain entry of the judgment by confession referenced
in Section 1(d)(i)(2) above, then MPI further agrees to promptly and without
contest stipulate to a judgment against it, in the form attached as Exhibit B
hereto; to deliver an originally, fully executed stipulated judgment to ST along
with this executed Agreement; and to not oppose entry of the stipulated judgment
in any action initiated by ST arising out of MPI's failure to make complete,
timely payment of the settlement payment referenced in Section 1(d)(i)(1) above
referenced in this Agreement following the notice and opportunity to cure
referenced in Section 1(d)(i)(2) above; ▇▇▇▇▇▇ ▇. ▇▇▇▇ or his successor will
have responsibility for retaining the stipulated judgment and utilizing it only
in accord with the terms of this Agreement, and returning it to MPI upon timely
payment in full by MPI to ST of the amount set forth in Section (d)(i)(1) above.
ii. Concurrent with the execution of this Agreement, MPI will
issue to ST a warrant to purchase 200,000 shares of MPI's common stock ("Common
Shares") at an exercise price of US$1.00 per share, which warrant will be
immediately exercisable and will remain exercisable for seven (7) years from the
date of issuance (the "Warrant"). The Warrant will conform to the documents
attached as Exhibit C hereto.
2. Representations and Warranties.
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a. MPI. MPI represents and warrants that:
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i. It has all requisite corporate power and authority to
execute and deliver, and fulfill its obligations under this Agreement and the
Warrant. This Agreement (notwithstanding the lack of approval of MPS), upon
execution and delivery by MPI and assuming due and proper execution and delivery
by ST, and the Warrant will constitute valid and binding obligations of MPI,
enforceable in accordance with their terms, except as such enforcement may be
limited by bankruptcy, insolvency, moratorium and other laws of general
application affecting the enforcement of creditors' rights.
ii. No consent, approval, order or authorization, or
registration, qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of MPI is required in
connection with the execution, delivery and performance of this Agreement and
the Warrant by MPI, other than state securities law filings which have been
completed or are in the process of being completed.
iii. No consent, approval, waiver or other action by any person
under any contract, agreement, indenture, lease, instrument or other document to
which MPI is a party or by which it is bound is necessary for the execution,
delivery and performance of this Agreement and the Warrant by MPI.
iv. MPS is not a necessary party to this Agreement and,
notwithstanding the foregoing, in the event MPS is a necessary party, MPI shall
indemnify ST from any and all damage it incurs as a result of MPS not being a
party to this agreement.
b. ST. ST represents and warrants that:
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i. It has all requisite corporate power and authority to
execute and deliver, and fulfill its obligations under this Agreement. This
Agreement, upon execution and delivery by ST and assuming due and proper
execution and delivery by MPI, will constitute a valid and binding obligation of
ST, enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, moratorium and other laws of general
application affecting the enforcement of creditors' rights.
ii. It is the proper assignee of the rights of ST-Singapore
with regard to the Loan Agreement and Guarantee.
3. Miscellaneous. MPI and ST hereby agree as follows:
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a. Differences in Fact. Each party to this Agreement hereby agrees
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to accept and assume the risk that any fact with respect to any matter covered
by this Agreement may hereafter be found to be other than or different from the
facts it believes at the time of this Agreement to be true, and agrees that this
Agreement shall be and will remain effective notwithstanding any such difference
in fact.
b. Severability. If any provision of this Agreement is found to
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be unenforceable, it shall not affect the enforceability of the remaining
provisions and the court shall enforce all remaining provisions to the extent
permitted by law. All parties agree that, notwithstanding the lack of execution
of this Agreement by MPS, this Agreement is valid, binding and enforceable on
all parties.
c. Prior Agreements. This Agreement shall supersede and render null
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and void any and all prior agreements between MPI and/or MPS, on one hand, and
ST, on the other hand, concerning the subject matter contained herein.
d. Scope of Release. This Agreement extends to all claims of every
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nature and kind, known or unknown, suspected or unsuspected, past or present,
arising from or attributable by any party to this Agreement for any matter
released in this Agreement and any and all rights granted to MPI or ST under
Section 1542 of the California Civil Code or any analogous state law or federal
or foreign law or regulation are hereby expressly waived. Said Section 1542 of
the Civil Code of the State of California reads as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the
release, which, if known by him, must have materially affected his
settlement with the debtor.
No party to this Agreement has any knowledge of any existing claims against any
other party, except for those released by this Agreement.
e. Successors and Assigns. This Agreement shall bind and benefit ST
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and its successors and assigns and shall also bind and benefit MPI and its
successors and assigns.
f. Governing Law. This Agreement shall be deemed to have been
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g. Jurisdiction. The parties to the Agreement hereby (i) irrevocably
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submit to the exclusive jurisdiction of the courts of the State of California
sitting in San Diego County for the purpose of any action or proceeding arising
out of or relating to this Agreement and any other documents and instruments
relating hereto, (ii) agree that all claims in respect of any such
action or proceeding may be heard and determined in such courts, (iii)
irrevocably waive (to the extent permitted by applicable law) any objection
which it now or hereafter may have to the laying of venue of any such action or
proceeding brought in any of the foregoing courts, and any objection on the
ground that any such action or proceeding in any such court has been brought in
an inconvenient forum and (iv) agree that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner permitted by law.
h. Remedies. The parties acknowledge and agree that, in the event of
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any dispute in which any party alleges and proves any non-performance or breach
of Section 1.a., 1.b. or 1.c., monetary damages will be an inadequate remedy for
the non-performance or breach of such provision(s), and the non-performing or
breaching party hereby consents in advance to be subject to specific performance
and any other appropriate equitable remedies. The parties acknowledge and agree
under no circumstances will punitive or consequential damages be awarded in
respect of any party's non-performance or breach of any provision of this
Agreement.
i. Counterparts. This agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
j. Titles and Subtitles. The titles and subtitles used in this
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Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
k. Amendment and Termination. No amendment, modification, waiver,
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termination or cancellation of this Agreement or any part thereof shall be
effective unless it is in writing and is signed by MPI and ST. No delay on the
part of any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof. Nor shall any waiver on the part of any party of
any such right, power or privilege, nor any single or partial exercise of any
such right, power or privilege, preclude any further exercise thereof or the
exercise of any other such right, power or privilege. The rights and remedies
herein provided are cumulative and are not exclusive of any rights or remedies
that any party may otherwise have at law or in equity. The rights and remedies
of any party based upon, arising out of or otherwise in respect of any
inaccuracy in or breach or nonfulfillment of or noncompliance with any
representation, warranty, covenant or agreement contained in this Agreement
shall in no way be limited by the fact that the act, omission, occurrence or
other state of facts upon which any claim of any such inaccuracy or breach is
based may also be the subject matter of any other representation, warranty,
covenant or agreement contained in this Agreement (or in any other agreement
between the parties) as to which there is no inaccuracy or breach.
l. Survival of Representations, Warrants, Covenants and Agreements.
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The representations, warranties, covenants and agreements contained in this
Agreement shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
m. Notices. All notices, demands or other communications to be given
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or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid), or mailed to the recipient by certified or
registered mail, return, receipt requested and postage prepaid. Such notices,
demands and other communications shall be addressed as follows:
If to ST:
c/o STMicroelectronics, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President,
Secretary and General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to MPI:
Microelectronic Packaging, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Van ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party
(provided that notice of a change of address shall be effective only upon
receipt thereof).
n. Strict Construction. This Agreement is the result of arms-length
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negotiations between the parties hereto and has been prepared jointly by the
parties. In applying and interpreting the provisions of this Agreement, there
shall be no presumption that the Agreement was prepared by any one party or that
the Agreement shall be construed in favor of or against any one party.
o. Consent to Assignment. In executing this Agreement, MPI waives
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any right it may have to object to the assignment of ST-Singapore's rights to ST
and to the extent required by contract, law or otherwise, consents to such
assignment.
p. Further Assurances. MPI and ST further agree to cooperate and
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take such actions as may be reasonably necessary to effectuate this Agreement,
including executing any additional documents which may be required to carry out
this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of
the day and year first above written.
MICROELECTRONIC PACKAGING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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(Print Name of Signatory)
Title: SVP & CFO
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STMicroelectronics, Inc. (formerly known as SGS-
Thomson Microelectronics, Inc.) assignee of
STMICROELECTRONICS PTE. LTD. (formerly known as
SGS-Thomson Microelectronics Pte. Ltd.)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
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(Print Name of Signatory)
Title: Vice President
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EXHIBIT A
VAN ▇. ▇▇▇▇▇▇ (SBN 114937)
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attorneys for Defendant
MICROELECTRONIC PACKAGING, INC.
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SAN DIEGO
IN RE CONFESSION OF JUDGMENT IN CASE NO. ____________
FAVOR OF STMICROELECTRONICS, DEFENDANT'S VERIFIED CONFESSION
INC., OF JUDGMENT STATEMENT
Plaintiff, [CCP (S) 1132(b)]
v.
MICROELECTRONIC PACKAGING,
INC., ET. AL,
Defendant.
Microelectronic Packaging, Inc. ("MPI") hereby confesses judgment in favor of
STMicroelectronics Inc.. (formerly known as SGS-Thomson Microelectronics Inc.)
(hereinafter "ST"), assignee of STMicroelectronics Pte. Ltd. (formerly known as
SGS-Thomson Microelectronics Pte. Ltd.) (hereinafter ST-Singapore) in the amount
of $4,000,000, plus interest at the legal rate from the date of entry of
judgment by confession, plus costs, and authorizes entry of judgment against MPI
in that sum.
MPI's confession of judgment is for money due and owing by MPI to ST and
arises out of the following facts:
Pursuant to a Supply Guarantee and Preferred Allocation Agreement dated August
17, 1995 by and among MPI, and ST-Singapore, ST-Singapore made a lump sum
advance in the
amount of $4,000,000 to a subsidiary of MPI, and MPI entered into a Deed of
Guarantee and Indemnity dated August 17, 1995 with ST-Singapore pursuant to
which MPI agreed to guarantee the obligations of MPS under the above-referenced
Loan Agreement. MPS has defaulted on its obligations under the Loan Agreement,
giving rise to MPI's obligations under the Guarantee. ST-Singapore has assigned
its rights under the loan agreement and the guarantee to ST. MPI's guarantee
obligation is the basis for the debt due and owing by MPI to ST, and the basis
for the amount as to which MPI confesses judgment against MPI in favor of ST.
Dated: September 24, 1998 MICROELECTRONIC PACKAGING, INC.,
Defendant
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Chief Financial Officer
VERIFICATION
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, am the Chief Financial Officer of Microelectronic
Packaging, Inc. I have read the foregoing verified confession of judgment
statement by Microelectronic Packaging, Inc. in favor of STMicroelectronics,
Inc., know the contents thereof, and am authorized to execute this verification
statement on behalf of MPI.
I declare under penalty of perjury under the laws of the State of California
and the United States of America that the foregoing verified confession of
judgment is true of my own knowledge and that this declaration was executed on
September 24, 1998, at Phoenix, Arizona.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
EXHIBIT A
VAN ▇. ▇▇▇▇▇▇ (SBN 114937)
▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Attorneys for Defendant
MICROELECTRONIC PACKAGING, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA,
COUNTY OF SAN DIEGO
IN RE CONFESSION OF JUDGMENT IN
FAVOR OF STMicroelectronics, Inc.
Plaintiff, CASE NO. ____________
v. DEFENDANT'S ATTORNEY'S
MICROELECTRONIC PACKAGING, INC., DECLARATION IN SUPPORT OF
ET. AL., STATEMENT CONFESSING JUDGMENT
Defendant. [CCP (S) 1133]
I, Van ▇. ▇▇▇▇▇▇, declare:
I am an attorney at law duly admitted to practice before all the courts of
the State of California and the attorney of record herein for Microelectronic
Packaging, Inc., the party confessing judgment in the above-entitled cause.
I further declare that I have examined the proposed judgment and have
advised Microelectronic Packaging, Inc. with respect to the waiver of rights and
defenses under the confession of judgment procedure, and have advised
Microelectronic Packaging, Inc. to utilize the confession of judgment procedure.
I declare under penalty of perjury that the foregoing is true and correct and
that this declaration was executed on September 23, 1998, at San Diego,
California.
Dated: September 23, 1998. ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇
By: /s/ Van ▇. ▇▇▇▇▇▇
---------------------------
Van ▇. ▇▇▇▇▇▇
Attorney for Defendant
MICROELECTRONIC PACKAGING, INC.
EXHIBIT A
SUPERIOR COURT OF THE STATE OF CALIFORNIA,
COUNTY OF SAN DIEGO
IN RE CONFESSION OF JUDGMENT IN
FAVOR OF STMICROELECTRONICS,
INC., CASE NO. ____________
Plaintiff, JUDGMENT BY CONFESSION
v. [CCP (S) 1134]
MICROELECTRONIC PACKAGING,
INC., ET. AL.,
Defendant.
Pursuant to the verified Confession of Judgment Statement by Microelectronic
Packaging, Inc. ("MPI") in favor of STMicroelectronics, Inc. ("ST"), judgment is
hereby entered by confession as follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that STMicroelectronics Inc. shall
recover from defendant Microelectronic Packaging, Inc. the following:
(1) Principal in the amount of $4,000,000.
(2) Interest on such principal amount from the date of entry of this judgment
at the legal rate then in effect.
(3) Ordinary and reasonable costs.
APPROVED AS TO FORM AND CONTENT.
Dated: September 23, 1998. ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇
Attorneys for Defendant
MICROELECTRONIC PACKAGING, INC.
By: /s/ Van ▇. ▇▇▇▇▇▇
-------------------------------
Van ▇. ▇▇▇▇▇▇
Attorney
Dated September 24, 1998
MICROELECTRONIC PACKAGING, INC.
Defendant
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Chief Financial Officer
IT IS SO ORDERED, ADJUSTED AND DECREED.
------------------------------------
CLERK OF THE COURT
------------------------------------
DEPUTY CLERK
EXHIBIT B
SUPERIOR COURT OF THE STATE OF CALIFORNIA,
COUNTY OF SAN DIEGO
STMICROELECTRONICS, INC.,
Plaintiff,
v. CASE NO. ____________
MICROELECTRONIC PACKAGING, STIPUTLATED JUDGMENT AND
INC., ET. AL., JUDGMENT THEREON
Defendant.
------------------------------
Defendant Microelectronic Packaging, Inc. ("MPI") hereby stipulates to entry
of judgment against MPI in favor of plaintiff STMicroelectronics, Inc. ("ST") In
the above-entitled action as follows:
1. Principal in the amount of $4,000,000;
2. Interest on such principal amount from the date of this judgment at the
legal rate then in effect.
3. Ordinary and reasonable costs.
APPROVED AS TO FORM AND CONTENT.
Dated: September 23, 1998. ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇
Attorneys for Defendant
MICROELECTRONIC PACKAGING, INC.
By: /s/ Van ▇. ▇▇▇▇▇▇
----------------------------------
Van ▇. ▇▇▇▇▇▇
Attorney
Dated September 24, 1998
MICROELECTRONIC PACKAGING, INC.
Defendant
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Senior Vice President
Chief Financial Officer
IT IS SO ORDERED, ADJUSTED AND DECREED.
--------------------------------------
JUDGE OF THE SUPERIOR COURT
EXHIBIT C
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT
IN EFFECT WITH RESPECT TO SUCH SECURITIES, OR DELIVERY OF AN OPINION OF COUNSEL
IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE SECURITIES THAT SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH THE ACT.
No. WCS-______
WARRANT TO PURCHASE COMMON STOCK
OF
MICROELECTRONIC PACKAGING, INC.
Void after September 24, 2005
This certifies that, for valid and good consideration, STMicroelectronics
Pte. Ltd. (formerly known as SGS-Thomson Microelectronics Pte. Ltd. (the
"Holder") is entitled, subject to the terms set forth below, to purchase from
Microelectronic Packaging, Inc. (the "Company"), a California corporation, the
number of shares of the Common Stock of the Company, as constituted on the date
hereof, upon surrender hereof, at the principal office of the Company referred
to below at the Exercise Price as set forth in Section 2 below. The number,
character and Exercise Price of such shares of Common Stock are subject to
determination and adjustment as provided below.
1. Term of Warrant. Subject to the terms and conditions set forth herein,
---------------
this Warrant shall be exercisable, in whole or in part, at any time or from time
to time on or after September 24, 1998. This Warrant shall expire at 5:00 p.m.,
Pacific Standard Time, on September 24, 2005 without any action on the part of
any party (the "Expiration Date").
2. Exercise Price. The exercise price at which this Warrant may be
--------------
exercised shall be $1.00 per share of Common Stock, as adjusted from time to
time pursuant to Section 11 hereof (the "Exercise Price"), payable either by
cash or check or by net exercise pursuant to Section 4.d.
3. Number of Shares. The Holder is entitled, subject to the provisions
----------------
of this Warrant, to purchase from the Company an aggregate of two hundred
thousand (200,000) fully paid and nonassessable shares of Common Stock of the
Company (subject to adjustment as provided herein) (the "Warrant Shares").
4. Exercise of Warrant.
-------------------
a. Subject to the terms and conditions set forth herein, the purchase
rights represented by this Warrant are exercisable by the Holder in whole or in
part, at any time, or from time to time, during the term hereof as described in
Section 1 above, and such exercise shall be effected by the surrender of this
Warrant, the Notice of Paid Exercise annexed hereto and upon payment of the
Exercise Price in cash or by check.
b. This Warrant shall be deemed to have been exercised immediately
prior to the close of business on the date of its surrender for exercise as
provided above, and the person or persons entitled to receive the shares of
Common Stock issuable upon such exercise shall be treated for all purposes as
the holder of record of such shares as of the close of business on such date. As
promptly as practicable on or after such date, the Company at its expense shall
issue and deliver to the person or persons entitled to receive the same a
certificate or certificates for the number of shares issuable upon such
exercise.
c. Upon any partial exercise of this Warrant, there shall be issued to
the Holder hereof a new Warrant certificate in respect of the Warrant Shares as
to which the Warrant Shares evidenced by this Warrant certificate shall not have
been exercised. This Warrant certificate may be exchanged at the office of the
Company by surrender of this Warrant certificate properly endorsed either
separately or in combination with one or more other Warrant certificates for one
or more new Warrant certificates evidencing the right of the Holder thereof to
purchase the same aggregate number of Warrant Shares as were purchasable upon
exercise of this Warrant evidenced by the Warrant certificate or certificates
exchanged. No fractional shares will be issued upon the exercise of any Warrant,
but the Company will pay the cash value thereof determined as provided in this
Warrant. This Warrant certificate is transferable at the office of the Company
in the manner and subject to the limitations set forth in this Warrant.
d. In lieu of exercising this Warrant by paying the Exercise Price in
cash or by check, Holder may elect to receive shares equal to the value of this
Warrant (or the portion thereof being canceled) by surrender of this Warrant at
the principal office of the Company together with the Notice of Net Exercise
annexed hereto in which event the Company shall issue to Holder a number of
shares of the Company's Common Stock, computed using the following formula:
Where X - The number of shares of Common Stock to be
issued to Holder.
X=(Y)(A-B)
--------
A
Y - The number of shares of Common Stock to be canceled
pursuant to such exercise under this Warrant.
A - The fair market value of one share of the Company's
Common Stock,
B - Exercise Price (as adjusted to the date of such
calculations).
For purposes of this Section, if the Company is not traded on the NASDAQ
Stock Market, the fair market value of one share of the Company's Common Stock
shall be the fair market value of such share as determined in good faith by the
Board of Directors of the Company.
5. No Fractional Shares or Scrip. No fractional shares or scrip
-----------------------------
representing fractional shares shall be issued upon the exercise of this
Warrant. In lieu of any fractional share to which the Holder would otherwise be
entitled, the Company shall make a cash payment equal to the Exercise Price
multiplied by such fraction.
6. No Rights of Shareholder. The Holder shall not be entitled to vote or
------------------------
receive dividends or be deemed the holder of Common Stock or any other
securities of the Company that may at any time be issuable on the exercise
hereof for any purpose, nor shall anything contained herein be construed to
confer upon the Holder, as such, any of the rights of a shareholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to give or withhold consent
to any corporate action or to receive notice of meetings, or to receive
dividends or subscription rights or otherwise until this Warrant shall have been
exercised and the shares of Common Stock purchasable upon the exercise hereof
shall have been issued, as provided herein.
7. Transfer of Warrant.
-------------------
a. Warrant Register. The Company will maintain a register (the
----------------
"Warrant Register") containing the names and addresses of the Holder or Holders.
Any Holder of this Warrant or any portion thereof may change his address as
shown on the Warrant Register by written notice to the Company requesting such
change. Any notice or written communication required or permitted to be given to
the Holder may be delivered or given by mail to such Holder as shown on the
Warrant Register and at the address shown on the Warrant Register. Until this
Warrant is transferred on the Warrant Register of the Company, the Company may
treat the Holder as shown on the Warrant Register as the absolute owner of this
Warrant for all purposes.
b. Non-transferability and Non-Negotiability of Warrant. Except as
----------------------------------------------------
otherwise provided below, this Warrant may not be transferred or assigned
without compliance with all applicable federal and state securities laws by the
transferor and the transferee (including the delivery of investment
representation letters and legal opinions reasonably satisfactory to the
Company). Any Holder of this Warrant or Warrant Shares (i) that is a partnership
or like organization may assign distribute or transfer all or any portion of
such securities to its partners or affiliated entities, or (ii) that is a
corporation or other entity may distribute or transfer all or any portion of
such securities to its affiliates, subsidiaries or its parent company or entity,
and, in each case, shall not be obligated to provide the Company with any
investment representation letters or legal opinions with respect to such
assignment, distribution or transfer.
c. Compliance with Securities Laws.
-------------------------------
(1) Authorization. Holder has full power and authority to enter
-------------
into this Warrant, and such Warrant constitutes its valid and legally binding
obligation, enforceable in accordance with its terms.
(2) Purchase Entirely for Own Account. This Warrant has been
---------------------------------
purchased by the Holder for such Holder's own account, not as a nominee or
agent, and not with a view to the resale or distribution of any part thereof,
and such Holder has no present intention of selling, granting any participation
in, or otherwise distributing the same. Such Holder does not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer, or
grant participation to any person with respect to this Warrant or underlying
shares of Common Stock.
(3) Disclosure of Information. Such Holder acknowledges that it
-------------------------
has received all the information that it has requested in connection with the
purchase of this Warrant, including the Company's filings with the Securities
and Exchange Commission. Holder further represents that it has had an
opportunity to ask questions and receive answers from the Company, as well as to
consult its own legal, tax and other advisors, regarding the information
provided and the terms and conditions of the offering of this Warrant. Holder
represents and warrants that it is prepared to lose its entire interest in this
Warrant and the underlying shares of Common Stock and has not relied on the
Company or any of the Company's advisors in determining whether to make this
investment in the Company.
(4) Investment Experience. Holder acknowledges that it is able
---------------------
to fend for itself, can bear the economic risk of its investment and has such
knowledge and experience in financial or business matters that it is capable of
evaluating the merits and risks of the investment in this Warrant and the
underlying shares of Common Stock. Such Holder also represents it has not been
organized for the purpose of acquiring this Warrant.
(5) Accredited Investor.
-------------------
(a) Holder is an "accredited investor" as defined below and
understands the meaning of that term.
(b) The term "accredited investor" as used herein refers to:
i) Any bank as defined in section 3(a)(2) of the Act, or
any savings and loan association or other institution as defined in section
3(a)(5(A) of the Act whether acting in its individual or fiduciary capacity; any
broker dealer registered pursuant to section 15 of the Securities Exchange Act
of 1934; any insurance company as defined in section 2(13) of the Act; any
investment company registered under the Investment Borrower Act of 1940 or any
business development company as defined in section 2(a)(48) of that Act; any
Small Business Investment Borrower licensed by the U.S. Small Business
Administration under section 301(c) or (d) of the Small Business Investment Act
of 1958; any plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its political
subdivisions, for the benefit of its employees, if such plan has total assets in
excess of $5,000,000; any employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974, if the investment decision is
made by a plan fiduciary, as defined in section 3(21) of such Act, which is
either a bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in excess
of $5,000,000 or, if a self-directed plan, with investment decisions made solely
by persons that are accredited investors;
ii) Any private business development company as defined
in section 202(a)(22) of the Investment Advisers Act of 1940;
iii) Any organization described in section 501(c)(3) of
the Internal Revenue Code, corporation, Massachusetts or similar business trust,
or partnership, not formed for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000,000;
iv) Any director, executive officer, or general partner
of the issuer of the securities being offered or sold, or any director,
executive officer, or general partner of a general partner of that issuer;
v) Any natural person whose individual net worth, or joint
net worth with that person's spouse, at the time of his purchase exceeds
$1,000,000;
vi) Any natural person who had an individual income in
excess of $200,000 in each of the two most recent years or joint income with
that person's spouse in excess of $300,000 in each of those years and has a
reasonable expectation of reaching the same income level in the current year;
vii) Any trust with total assets in excess of $5,000,000,
not formed for the specific purpose of acquiring the securities offered, whose
purchase is directed by a person who has such knowledge and experience in
financial and business matters that he is capable of evaluating the merits and
risks of the prospective investment or the issuer believes immediately prior to
making any sale that such person comes within this description; or
viii) Any entity in which all of the equity owners are
accredited investors.
As used in this Section, the term "net worth" means the excess of
total assets over total liabilities. For the purpose of determining a person's
net worth, the principal residence owned by an individual should be valued at
fair market value, including the cost of improvements, net of current
encumbrances. As used in this Section, "income" means actual economic income,
which may differ from adjusted gross income for income tax purposes.
Accordingly, the Holder should consider whether it should add any or all of the
following items to its adjusted gross income for income tax purposes in order to
reflect more accurately its actual economic income: any amounts attributable to
tax-exempt income received, losses claimed as a limited partner in any limited
partnership, and deductions claimed for depletion.
(6) Restricted Securities. The Holder understands that this
---------------------
Warrant and underlying Common Stock it is purchasing are characterized as
"restricted securities" under U.S. federal securities laws inasmuch as they are
being acquired from the Company in a transaction not involving a public offering
and without
registration under such laws and applicable regulations and cannot be resold
without registration under the Act, except in certain limited circumstances. In
this connection, the Holder represents that it is familiar with SEC Rule 144, as
currently in effect, and understands the resale limitations imposed on these
securities by the Act.
(7) Representations by Foreign Investor. The Holder hereby
-----------------------------------
represents that it has satisfied itself as to the full observance of the laws of
its jurisdiction in connection with any invitation to subscribe for this Warrant
and underlying shares of Common Stock, including (i) the legal requirements
within its jurisdiction for the purchase of this Warrant and underlying shares
of Common Stock, (ii) any foreign exchange restrictions applicable to such
purchase, (iii) any governmental or other consents that may need to be obtained,
and (iv) the income tax and other tax consequences, if any, that may be relevant
to the purchase, holding, redemption, sale, or transfer of this Warrant and
underlying shares of Common Stock. The Holder's subscription and payment for,
and its continued beneficial ownership of this Warrant, will not violate any
applicable securities or other laws of its jurisdiction.
(8) Compliance with Securities Laws. Unless otherwise provided
-------------------------------
herein, without in any way limiting the representations set forth above, the
Holder further agrees not to make any disposition of all or any portion of this
Warrant or any shares of Common Stock to be issued upon exercise hereof unless
and until the transferee has agreed in writing for the benefit of the Company to
be bound by the terms of this Warrant, provided and to the extent such sections
are then applicable, and:
(a) There is then in effect a registration statement under
the Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
(b) (1) the Holder shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition and (2) the
Holder shall have furnished the Company with an opinion of counsel, reasonably
satisfactory to the Company, that such disposition will not require registration
of such securities under the Act.
8. Legends. This Warrant and all shares of Common Stock issued upon
-------
exercise hereof will bear one or all of the following legends:
(a) "THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO SUCH SECURITIES, OR DELIVERY OF
AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THESE
SECURITIES THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN
COMPLIANCE WITH THE ACT."
(b) Any legend required by the laws of the State of California or
other applicable authority, including any legend required by the California
Department of Corporations and Sections 417 and 418 of the California
Corporations Code.
9. Reservation of Stock. The Company covenants that during the term this
--------------------
Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant and, from time to time, will
take all steps necessary to amend its articles of incorporation to provide
sufficient reserves of shares of Common Stock issuable upon exercise of this
Warrant. The Company further covenants that all shares that may be issued upon
the exercise of rights represented by this Warrant, upon exercise of the rights
represented by this Warrant and payment of the Exercise Price, all as set forth
herein, will be free from all taxes, liens, and charges in respect of the issue
thereof (other than taxes in respect of any transfer occurring contemporaneously
or otherwise specified herein) and will be fully paid and non-assessable. The
Company agrees that its issuance of this Warrant shall constitute full authority
to its officers who are charged with the duty of executing stock certificates to
execute and issue the necessary certificates for shares of Common Stock upon the
exercise of this Warrant.
10. Amendments and Waivers.
----------------------
a. Any term of this Warrant may be amended or waived with the written
consent of the Company and the Holder.
b. No waivers of or exceptions to any term, condition or provision of
this Warrant, in any one or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such term, condition or provision.
11. Adjustments. The number of shares purchasable hereunder are subject to
-----------
adjustment from time to time as follows:
a. Merger, Sale of Assets, etc. If at any time, while this Warrant,
----------------------------
or any portion thereof, is outstanding and unexpired there shall be (i) a
reorganization (other than a combination, reclassification, exchange or
subdivision of shares otherwise provided for herein), (ii) a merger (other than
a mere reincorporation merger) or consolidation of the Company with or into
another corporation in which the Company is not the surviving entity, or a
merger in which the Company is the surviving entity but the shares of the
Company's capital stock outstanding immediately prior to the merger are
converted by virtue of the merger into other property, whether in the form of
securities, cash, or otherwise, or (iii) a sale or transfer of the Company's
properties and assets as, or substantially as, an entirety to any other person,
then, as a part of such reorganization, merger, consolidation, sale or transfer,
lawful provision shall be made so that the holder of this Warrant shall
thereafter be entitled to receive upon exercise of this Warrant, during the
period specified herein and upon payment of the Exercise Price then in effect or
by net exercise pursuant to Section 4.d., the number of shares of stock or other
securities or property of the successor corporation resulting from such
reorganization, merger, consolidation, sale or transfer which a holder of the
shares deliverable upon such exercise of this Warrant would have been entitled
to receive in such reorganization, consolidation, merger, sale or transfer, if
this Warrant had been exercised immediately before the consummation of such
reorganization, merger, consolidation, sale or transfer, all subject to further
adjustment as provided in this Section 11. The foregoing provisions of this
Section 11(a) shall similarly apply to successive reorganizations,
consolidations, mergers, sales and transfers and to the stock or securities of
any other corporation which are at the time receivable upon the exercise of this
Warrant. If the per share consideration payable to the Holder hereof for shares
in connection with any such transaction is in a form other than cash or
marketable securities, then the value of such consideration shall be determined
in good faith by the Company's Board of Directors. In all events, appropriate
adjustment (as determined in good faith by the Company's Board of Directors)
shall be made in the application of the provisions of this Warrant with respect
to the rights and interests of the Holder after the transaction, to the end that
the provisions of this Warrant shall be applicable after that event, as near as
reasonably may be, in relation to any shares or other property deliverable after
that event upon exercise of this Warrant.
b. Reclassification, etc. If the Company at any time while this
----------------------
Warrant, or any portion thereof, remains outstanding and unexpired shall, by
reclassification of securities or otherwise, change any of the securities as to
which purchase rights under this Warrant exist into the same or a different
number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as
would have been issuable as the result of such change with respect to the
securities which were subject to the purchase rights under this Warrant
immediately prior to such reclassification or other change, and the Exercise
Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 11.
c. Split, Subdivision or Combination of Shares. If the Company at
-------------------------------------------
any time while this Warrant, or any portion thereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Warrant exist, into a different number of securities of the
same class, this Warrant shall thereafter represent the right to acquire such
number of securities as would have been issuable as the result of such change
with respect to the securities which were subject to the purchase rights under
this Warrant immediately prior to such change, and the Exercise Price for such
securities shall be proportionately decreased in the case of a split or
subdivision or proportionately increased in the case of a combination.
d. Adjustments for Dividends in Stock or Other Securities or
---------------------------------------------------------
Property. If while this
--------
Warrant, or any portion hereof, remains outstanding and unexpired the holders of
the securities as to which purchase rights under this Warrant exist at the time
shall have received, or, on or after the record date fixed for the determination
of eligible shareholders, shall have become entitled to receive, without payment
therefor, other or additional stock or other securities or property of the
Company by way of dividend, then and in each case, this Warrant shall represent
the right to acquire, in addition to the number of shares of the security
receivable upon exercise of this Warrant, and without payment of any additional
consideration therefor, the amount of such other or additional stock or other
securities or property of the Company which such holder would hold on the date
of such exercise had it been the holder of record of the security receivable
upon exercise of this Warrant on the date hereof and had thereafter, during the
period from the date hereof to and including the date of such exercise, retained
such shares and/or all other additional stock available by it as aforesaid
during such period, giving effect to all adjustments called for during such
period by the provisions of this Section 11.
e. Prior Notice of Certain Events. The Company will provide Holder
------------------------------
with notice of any merger, asset sale or dividend not less than ten (10)
business days prior to the record date for such event.
12. Registration of Warrant Shares.
------------------------------
a. With respect to 100,000 of the Warrant Shares during the period
beginning on the date of issuance of this Warrant and ending on the Expiration
Date, and with respect to the remaining 100,000 Warrant Shares during the period
beginning on the second anniversary hereof and ending on the Expiration Date
(the Warrant Shares that are subject to registration at a given time are
referred to herein as the "Registrable Warrant Shares"), the Holder shall have
the right to request the filing of a registration statement on Form S-3 (such
requests shall be in writing and shall state the number of shares of Registrable
Warrant Shares to be disposed of and the intended methods of disposition of such
shares by such Holder); provided, however, that the Company shall not be
obligated to effect any such registration after the Company has effected two (2)
such registrations pursuant to such a request of the Holders.
b. In the case of each registration effected by the Company pursuant
to Section 12.a., the Company will keep each Holder advised in writing as to the
initiation of each registration and as to the completion thereof. At its
expense, the Company will use its best efforts to:
(1) File such S-3 registration statement with the Securities and
Exchange Commission within 120 days of receive a request pursuant to Section
12.a. and, to the extent practicable, cause such registration statement to be
declared effective within 120 days of such request.
(2) Keep the registration statement effective for six months after
the effective date of such registration statement;
(3) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(4) Furnish such number of prospectuses and other documents
incident thereto, including any amendment of or supplement to the prospectus, as
a Holder from time to time may reasonably request;
(5) Notify the Holder at any time when a prospectus relating to
Registrable Warrant Shares is required to be delivered under the Securities Act
of the happening of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or incomplete in the
light of the circumstances then existing, and at the request of any such seller,
prepare and furnish to such seller a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or incomplete in the light of the circumstances then existing;
(6) Cause all such Registrable Warrant Shares registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
13. Miscellaneous.
-------------
a. Governing Law. This Warrant shall be governed by and construed
-------------
under the laws of California. The parties to this Warrant hereby (i) irrevocably
submit to the exclusive jurisdiction of the courts of California for the purpose
of any action or proceeding arising out of or relating to this Warrant and any
other documents and instruments relating hereto, (ii) agree that all claims in
respect of any such action or proceeding may be heard and determined in such
courts, (iii) irrevocably waive (to the extent permitted by applicable law) any
objection which it now or hereafter may have to the laying of venue of any such
action or proceeding brought in any of the foregoing courts, and any objection
on the ground that any such action or proceeding in any such court has been
brought in an inconvenient forum and (iv) agree that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner permitted by law.
b. Notices. Unless otherwise provided, any notice required or
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permitted under this Warrant shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof in the case of the
Company, and on the Warrant Register in the case of the Holder, or at such other
address as such party may designate by ten (10) days' advance written notice to
the other parties.
c. Counterparts. This Warrant may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
d. Successor and Assigns. This Warrant shall bind and benefit the
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Holder and each of its successors and assigns and the Company and each of its
successors and assigns.
IN WITNESS WHEREOF, each of Microelectronic Packaging, Inc., and the Holder
has caused this Warrant to be executed by one of its duly authorized officers or
such other authorized person or entity.
Dated:September 24, 1998 MICROELECTRONIC PACKAGING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Chief Financial Officer
STMICROELECTRONICS PTE. LTD.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇
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(Print Name of Signatory)
Title: Vice President
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NOTICE OF PAID EXERCISE
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To: MICROELECTRONIC PACKAGING, INC.
(1) The undersigned hereby elects to purchase __________ shares of Common
Stock of Microelectronic Packaging, Inc. pursuant to Section 4(a) of the
attached Warrant, and tenders herewith payment of the purchase price for such
shares.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of Common Stock are being acquired solely for the
account of the undersigned and not as a nominee for any other party, and for
investment, and that the undersigned will not offer, sell, or otherwise dispose
of any such shares of Common Stock except under circumstances that will not
result in a violation of the Securities Act of 1933, as amended, or any state
securities laws or unless sold pursuant to Rule 144 of such Act.
(3) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
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[Name]
And, if said number of shares of Common Stock shall not be all the shares
of Common Stock purchasable under the within Warrant certificate, a new Warrant
certificate is to be issued in the name of said undersigned for the balance
remaining of the Warrant Shares purchasable thereunder less any fraction of a
share paid in cash.
NOTICE OF NET EXERCISE
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To: MICROELECTRONIC PACKAGING, INC.
(1) The undersigned hereby elects to purchase __________ shares of Common
Stock of Microelectronic Packaging, Inc. pursuant to Section 4.d. of the
attached Warrant, such that an additional number of shares of Common Stock under
the Warrant will be cancelled in respect of the purchase price in the manner set
forth in Section 4.d.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the shares of Common Stock are being acquired solely for the
account of the undersigned and not as a nominee for any other party, and for
investment, and that the undersigned will not offer, sell, or otherwise dispose
of any such shares of Common Stock except under circumstances that will not
result in a violation of the Securities Act of 1933, as amended, or any state
securities laws or unless sold pursuant to Rule 144 of such Act.
(3) Please issue a certificate or certificates representing said shares of
Common Stock in the name of the undersigned or in such other name as is
specified below:
------------------------------------
[Name]
And, if number of shares of Common Stock being cancelled pursuant to
Section 4.d. of the Warrant shall not be all the shares of Common Stock
purchasable under the within Warrant certificate, a new Warrant certificate is
to be issued in the name of said undersigned for the balance remaining of the
Warrant Shares purchasable thereunder less any fraction of a share paid in cash.