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Exhibit 1.2
CGS&H DRAFT/ International Version
3/24/98
AMKOR TECHNOLOGY, INC.
7,000,000 Shares*
Common Stock
($.001 par value)
$30,000,000**
___% Convertible Subordinated Notes due 2003
International Underwriting Agreement
London, England
April __, 1998
Xxxxx Xxxxxx Inc.
BancAmerica Xxxxxxxxx Xxxxxxxx International Limited
Xxxxx International L.P.
As International Representatives of the several International Underwriters,
c/o Xxxxx Xxxxxx Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Amkor Technology, Inc., a Delaware corporation (the
"Company"), proposes to sell to the underwriters named in Schedule I hereto (the
"International Underwriters"), for whom you (the "International
Representatives") are acting as representatives, 6,000,000 shares of common
stock, $.001 par value ("Common Stock"), of the Company, and the persons named
in Schedule II hereto (the "Selling Stockholders") propose to sell to the
International Underwriters 1,000,000 shares of Common Stock (said shares to be
issued and sold by the Company and shares to be sold by the Selling Stockholders
collectively being hereinafter called the "International Underwritten Shares").
The Company also proposes to grant to the International Underwriters an option
to purchase up to 1,050,000 additional shares of Common Stock (the
"International Option Shares"; the International Option Shares, together with
the International Underwritten Shares, being hereinafter called the
"International Shares"). The Company also
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* Plus an option to purchase from Amkor Technology, Inc. up to 1,050,000
additional shares to cover over-allotments.
** Plus an option to purchase from Amkor Technology, Inc. up to $4,500,000
additional principal amount of its ___% Convertible Subordinated Notes
due 2003 to cover over-allotments.
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proposes to sell to certain of the International Underwriters $30,000,000
principal amount of its ___% Convertible Subordinated Notes due 2003 (the
"International Underwritten Notes"), to be issued under an indenture (the
"Indenture") to be dated as of April __, 1998, between the Company and State
Street Bank and Trust Company, as trustee (the "Trustee"). The Company also
proposes to grant to such International Underwriters an option to purchase up to
$4,500,000 additional principal amount of its ___% Convertible Subordinated
Notes due 2003 (the "International Option Notes"; the International Option
Notes, together with the International Underwritten Notes, being hereinafter
called the "International Notes"; and the International Notes, together with the
International Shares, being hereinafter called the "International Securities").
The International Notes are convertible into shares of Common Stock.
It is understood that the Company and the Selling Stockholders
are concurrently entering into a U.S. Underwriting Agreement dated the date
hereof (the "U.S. Underwriting Agreement") providing for (i) the sale by the
Company and the Selling Stockholders of an aggregate of 28,000,000 shares of
Common Stock (said shares to be sold by the Company and the Selling Stockholders
pursuant to the U.S. Underwriting Agreement being hereinafter called the "U.S.
Underwritten Shares"), and providing for the grant to the underwriters named in
Schedule I thereto (the "U.S. Underwriters") of an option to purchase from the
Company up to 4,200,000 additional shares of Common Stock (the "U.S. Option
Shares"; the U.S. Option Shares, together with the U.S. Underwritten Shares,
being hereinafter called the "U.S. Shares"; and the U.S. Shares, together with
the International Shares, being hereinafter called the "Shares") and (ii) the
sale by the Company of $120,000,000 principal amount of its ___% Convertible
Subordinated Notes due 2003 (the "U.S. Underwritten Notes"), and providing for
the grant to certain U.S. Underwriters of an option to purchase from the Company
up to $18,000,000 additional principal amount of its ____% Convertible
Subordinated Notes due 2003 (the "U.S. Option Notes"; the U.S. Option Notes,
together with the U.S. Underwritten Notes, being hereinafter called the "U.S.
Notes"; and the U.S. Notes, together with the U.S. Shares, being hereinafter
called the "U.S. Securities"; and the U.S. Notes, together with the
International Notes, being hereinafter called the "Notes"; and the Notes,
together with the Shares, being hereinafter called the "Securities").
It is further understood and agreed that the International
Underwriters and the U.S. Underwriters have entered into an Agreement Between
U.S. Underwriters and International Underwriters dated the date hereof (the
"Agreement Between U.S. Underwriters and International Underwriters"), pursuant
to which, among other things, the International Underwriters may purchase from
the U.S. Underwriters a portion of the U.S. Securities to be sold pursuant to
the U.S. Underwriting Agreement and the U.S. Underwriters may purchase from the
International Underwriters a portion of the International Securities to be sold
pursuant to the International Underwriting Agreement. To the extent there are no
additional International Underwriters listed on Schedule I other than you, the
term International Representatives as used herein shall mean you, as
International Underwriters, and the terms International Representatives and
International Underwriters shall mean either the singular or plural as the
context requires.
It is understood by the parties hereto that Xx. Xxxxx X. Xxx
and Xxx. Xxxxx X. Xxx ("Mr. and Xxx. Xxxxx X. Xxx"), Selling Stockholders, are
concurrently entering into a
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securities loan agreement dated the date hereof (the "Securities Loan
Agreement") with Xxxxx Xxxxxx Inc. ("SBI") which provides that, subject to
certain restrictions and with the agreement of Mr. and Xxx. Xxxxx X. Xxx, SBI
may from time to time borrow, return and reborrow from Mr. and Xxx. Xxxxx X. Xxx
certain shares of Common Stock (the "Borrowed Shares") for the purpose of
facilitating market-making activity in the Notes by SBI.
Certain terms used in this Agreement are defined in Section 17
hereof.
1. Representations and Warranties.
A. The Company and Xx. Xxxxx X. Xxx, a Selling
Stockholder, jointly and severally represent and warrant to, and agree
with, each International Underwriter as set forth below in this Section
1A.
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement (file
number 333-37235) on Form S-1, including the related Offering
Preliminary Prospectuses, for the registration under the Act of the
offering and sale of the Securities. The Company may have filed one or
more amendments thereto, including the related Offering Preliminary
Prospectuses, each of which has previously been furnished to you. The
Company will next file with the Commission either (i) prior to
effectiveness of the Offering Registration Statement, a further
amendment to the Offering Registration Statement (including the form of
Offering Prospectuses) or (ii) after effectiveness of the Offering
Registration Statement, the Offering Prospectuses in accordance with
Rules 430A and 424(b)(1) or (4). In the case of clause (ii), the
Company has included in the Offering Registration Statement all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in the Offering Registration
Statement and the Offering Prospectuses. As filed, such amendment and
form of Offering Prospectuses, or such Offering Prospectuses, shall
contain all Rule 430A Information, together with all other such
required information, and, except to the extent the International
Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the latest Offering International
Preliminary Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
It is understood that two forms of prospectus are to
be used in connection with the offering and sale of the Securities: one
form of prospectus relating to the International Securities, which are
to be offered and sold to persons other than United States and Canadian
Persons, and one form of prospectus relating to the U.S. Securities,
which are to be offered and sold to United States and Canadian Persons.
The two forms of prospectus are identical except for the outside front
cover page, the inside front cover page, the discussion under the
headings "Underwriting" and the outside back cover page. Such form of
prospectus relating to the U.S. Securities as first filed pursuant to
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Rule 424(b) after the Execution Time or, if no filing pursuant to Rule
424(b) is made, such form of prospectus included in the Offering
Registration Statement at the Effective Date, is hereinafter called the
"Offering U.S. Prospectus"; such form of prospectus relating to the
International Securities as first filed pursuant to Rule 424(b) after
the Execution Time or, if no filing pursuant to Rule 424(b) is made,
such form of prospectus included in the Offering Registration Statement
at the Effective Date, in either case, exclusive of any supplement
thereto, is hereinafter called the "Offering International Prospectus";
and the Offering U.S. Prospectus and the Offering International
Prospectus are hereinafter collectively called the "Offering
Prospectuses".
(b) On the Effective Date, the Offering Registration
Statement did or will, and when the Offering Prospectuses are first
filed (if required) in accordance with Rule 424(b) and on the Closing
Date (as defined herein) and on any date on which the International
Option Shares or the International Option Notes are purchased, if such
date is not the Closing Date (a "settlement date"), each Offering
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act and the rules
thereunder; on the Effective Date and at the Execution Time, the
Offering Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, each
Offering Prospectus, if not filed pursuant to Rule 424(b), did not or
will not, and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date and any settlement date, each Offering Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company and Xx. Xxxxx X. Xxx make no representations
or warranties as to the information contained in or omitted from the
Offering Registration Statement or the Offering Prospectuses (or any
supplement thereto) in reliance upon and in conformity with information
furnished herein or in writing to the Company by or on behalf of any
International Underwriter through the International Representatives
specifically for inclusion in the Offering Registration Statement or
the Offering Prospectuses (or any supplement thereto).
(c) The Company has filed with the Commission a
registration statement (file number 333-_________) on Form S-1,
including the related Borrowing Preliminary Prospectus, for the
registration under the Act of the offering and sale of the Borrowed
Shares. The Company may have filed one or more amendments thereto,
including the related Borrowing Preliminary Prospectus, each of which
has previously been furnished to you. The Company will next file with
the Commission either (i) prior to the effectiveness of the Borrowing
Registration Statement, a further amendment to the Borrowing
Registration Statement (including the form of Borrowing Prospectus) or
(ii) after the effectiveness of the Borrowing Registration Statement ,
the Borrowing Prospectus in accordance with Rules 430A and 424(b)(1) or
(4). In the case of clause (ii), the Company has included in the
Borrowing Registration Statement all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be
included
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in the Borrowing Registration Statement and the Borrowing Prospectus.
As filed, such amendment and form of Borrowing Prospectus, or such
Borrowing Prospectus, shall contain all Rule 430A Information, together
with all other such required information, and, except to the extent the
International Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior
to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes (beyond that contained in the latest Borrowing Preliminary
Prospectus) as the Company has advised you, prior to the Execution
Time, will be included or made therein.
(d) On the Effective Date, the Borrowing Registration
Statement did or will, and when the Borrowing Prospectus is first filed
(if required) in accordance with Rule 424(b) and on the Closing Date,
the Borrowing Prospectus (and any supplements thereto) will, comply in
all material respects with the applicable requirements of the Act and
the rules thereunder; on the Borrowing Effective Date and at the
Execution Time, the Borrowing Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order
to make the statements therein not misleading; and, on the Borrowing
Effective Date, the Borrowing Prospectus, if not filed pursuant to Rule
424(b), will not, and on the date of any filing pursuant to Rule 424(b)
and on the Closing Date, the Borrowing Prospectus (together with any
supplemental thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company and Xx. Xxxxx X. Xxx make no representations or warranties as
to the information contained in or omitted from the Borrowing
Registration Statement, or the Borrowing Prospectus (or any
supplemental thereto) in reliance upon and in conformity with
information furnished herein or in writing to the Company by or on
behalf of any International Underwriter through the International
Representatives specifically for inclusion in the Borrowing
Registration Statement or the Borrowing Prospectus (or any supplement
thereto).
(e) The combined financial statements and schedules of
the Company and A.K. Industries, Inc., Amkor Electronics, Inc., Amkor
Anam Test Services, Inc., T.L. Limited, Amkor Anam Advanced Packaging,
Inc. ("AAAP"), Amkor/Anam Pilipinas, Inc. ("AAP"), C.I.L. Limited,
Amkor/Anam Euroservices S.A.R.L., and Automated MicroElectronics, Inc.
("AMI") (each a "Subsidiary" and collectively the "Subsidiaries")
included in the Prospectuses and the Registration Statements present
fairly in all material respects the financial condition, results of
operations and cash flows of the Company and the Subsidiaries, on a
combined basis, as of the dates and for the periods indicated, comply
as to form with the applicable accounting requirements of the Act and
the rules and regulations thereunder and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise
noted therein).
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(f) Each of the Company, the Subsidiaries and, to the
knowledge of the Company and Xx. Xxxxx X. Xxx, Anam Industrial Co.,
Ltd. ("AICL") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in
which it is chartered or organized with full corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Prospectuses; each of the Company and the
Subsidiaries is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction which
requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect; and no proceeding
has been instituted in any such jurisdiction, revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and
authority or qualification except such proceedings which, if
successful, would not individually or in the aggregate have a Material
Adverse Effect.
(g) All the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except (i) such shares of AAP owned
by AICL, which shares do not exceed 40.1% of the outstanding voting
shares of AAP, (ii) such shares of AAP, AMI and AAAP owned by directors
thereof, which shares in each case do not exceed 0.1% of the
outstanding shares of such Subsidiary, (iii) 3,446,476 shares of
preferred stock of AAP, which shares are owned by Integrated
Microelectronics, Inc., and (iv) as otherwise set forth in the
Prospectuses, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any perfected security interest
and any other security interests, claims, liens or encumbrances.
(h) The Company's authorized equity capitalization is
as set forth in the Prospectuses; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Prospectuses; the outstanding shares of Common Stock have been
duly and validly authorized and issued and are fully paid and
nonassessable; the International Shares being sold hereunder have been
duly and validly authorized, and, when issued and delivered to and paid
for by the International Underwriters pursuant to this Agreement, will
be fully paid and nonassessable; the International Shares have been
duly authorized for listing, subject to official notice of issuance, on
the Nasdaq National Market; the certificates for the International
Shares are in valid and sufficient form; the holders of outstanding
shares of capital stock of the Company are not entitled to preemptive
or other rights to subscribe for the International Shares; and, except
as set forth in the Prospectuses, no options, warrants or other rights
to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of
capital stock of or ownership interests in the Company are outstanding.
(i) The Indenture will be, as of the Closing Date, duly
authorized, executed and delivered; the Indenture has been duly
qualified under the Trust Indenture Act and as of the Closing Date will
constitute a valid, binding and enforceable obligation of the Company;
the International Notes have been duly authorized by the Company and,
when authenticated by the Trustee in accordance with the terms of the
Indenture and
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delivered to and paid for by the International Underwriters pursuant to
this Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid, binding and enforceable
obligations of the Company entitled to the benefits provided by the
Indenture; the shares of Common Stock issuable upon conversion of the
International Notes have been duly authorized for listing, subject to
official notice of issuance, on the Nasdaq National Market; the holders
of the outstanding shares of capital stock of the Company are not
entitled to any preemptive or other rights to subscribe for the
International Notes or the shares of Common Stock issuable upon the
conversion thereof; the shares of Common Stock initially issuable upon
conversion of the International Notes have been duly and validly
authorized and reserved for issuance upon such conversion and, when
issued upon conversion, will be validly issued, fully paid and
nonassessable; and the International Notes and the Indenture will
conform in all material respects to the descriptions thereof contained
in the Offering Prospectuses.
(j) There is no franchise, contract or other document
of a character required to be described in the Registration Statements
or Prospectuses, or to be filed as an exhibit thereto, which is not
described or filed as required.
(k) This Agreement has been duly authorized, executed
and delivered by the Company and is a valid, binding and enforceable
agreement of the Company.
(l) The Company is not and, after giving effect to the
offering and sale of the International Securities and the application
of the proceeds thereof as described in the Prospectuses, will not be
an "investment company" as defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(m) No consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the transactions contemplated herein, except such as
have been obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the International Securities by the International
Underwriters in the manner contemplated herein and in the Prospectuses.
(n) Neither the issue and sale of the International
Securities nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will conflict
with, or result in a breach or violation of or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of the Subsidiaries pursuant to, (i) the charter or bylaws of the
Company or any of the Subsidiaries or (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement to which the Company or any of the
Subsidiaries is a party or bound or to which its or their property is
subject or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of the Subsidiaries of any
court, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of the Subsidiaries or any of its
or their properties.
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(o) No holders of securities of the Company have rights
to the registration of such securities under the Registration
Statements.
(p) No action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of the Subsidiaries or its or their
property is pending or, to the knowledge of the Company and Xx. Xxxxx
X. Xxx, threatened that (i) could reasonably be expected to have a
material adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or (ii)
could reasonably be expected to have a Material Adverse Effect, except
as set forth in or contemplated in the Prospectuses.
(q) The Reorganization (as defined in the Prospectuses)
has been completed as described in the Prospectuses.
(r) Each of the Packaging and Test Services Agreement
dated November 1, 1997 and the Foundry Services Agreement dated January
1, 1998 (collectively, the "AICL Agreements") has been duly authorized,
executed and delivered by the Company, the Subsidiaries that are
parties thereto (the "Subsidiary Parties") and AICL and is a valid,
binding and enforceable agreement of the Company, the Subsidiary
Parties and, to the knowledge of the Company and Xx. Xxxxx X. Xxx,
AICL; neither the consummation of the transactions contemplated in any
of the AICL Agreements nor the fulfillment of the terms thereof will
conflict with, or result in a breach or violation of or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company, any of the Subsidiary Parties or AICL pursuant to, (i) the
charter or bylaws of the Company, any Subsidiary Party or, to the
knowledge of the Company and Xx. Xxxxx X. Xxx, AICL or (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement to which the Company, any
Subsidiary Party or, to the knowledge of the Company and Xx. Xxxxx X.
Xxx, AICL is a party or bound or to which their respective property is
subject (except for such breaches or violations which would not,
individually or in the aggregate, have a Material Adverse Effect or a
material adverse effect on the ability of AICL to perform any of the
AICL Agreements) or (iii) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company, any Subsidiary Party or, to
the knowledge of the Company and Xx. Xxxxx X. Xxx, AICL of any court,
governmental body, arbitrator or other authority having jurisdiction
over the Company, such Subsidiary Party or AICL or any of their
respective properties; no consent, approval, authorization, filing with
or order of any court or governmental agency or body is currently
required in connection with the transactions contemplated in any of the
AICL Agreements, except those which have been obtained or which, if not
obtained, would not individually or in the aggregate have a material
adverse effect on the performance of any of the AICL Agreements or the
consummation of the transactions contemplated thereby; and no action,
suit or proceeding by or before any court or governmental body or any
arbitrator involving the Company, any Subsidiary Party or, to the
knowledge of the Company and Xx. Xxxxx X. Xxx, AICL or their respective
properties is pending or, to the knowledge of the Company and Xx. Xxxxx
X. Xxx, threatened that could reasonably be expected to have a material
adverse effect on the
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performance of any of the AICL Agreements or the consummation of the
transactions contemplated thereby.
(s) Each of the Company, the Subsidiaries and, to the
knowledge of the Company and Xx. Xxxxx X. Xxx, AICL owns or leases all
such properties as are necessary to the conduct of its operations as
presently conducted; neither the Company nor any Subsidiary nor, to the
knowledge of the Company and Xx. Xxxxx X. Xxx, AICL is in violation of
any law, rule or regulation of any Federal, state, local or other
governmental or regulatory authority applicable to it or is in
non-compliance with any term or condition of, or has failed to obtain
and maintain in effect, any license, certificate, permit or other
governmental authorization required for the ownership or lease of its
property or the conduct of its business, which violation,
non-compliance or failure would individually or in the aggregate have a
Material Adverse Effect or a material adverse effect on the ability of
AICL to perform any of the AICL Agreements, except as set forth in or
contemplated in the Prospectuses; and the Company has not received
notice of any proceedings relating to the revocation or material
modification of any such license, certificate, permit or other
authorization (other than such proceedings which, if the subject of an
unfavorable decision, would not individually or in the aggregate have a
Material Adverse Effect), except as set forth in or contemplated in the
Prospectuses.
(t) Neither the Company nor any Subsidiary nor, to the
knowledge of the Company and Xx. Xxxxx X. Xxx, AICL is in violation or
default of (i) any provision of its charter or bylaws, (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement to which it is a party or
bound or to which its property is subject, or (iii) any statute, law,
rule, regulation, judgment, order or decree of any court, governmental
body, arbitrator or other authority having jurisdiction over the
Company, or such Subsidiary or AICL or any of their respective
properties, as applicable, in each case (x) other than such violations
or defaults which would not, individually or in the aggregate, have a
Material Adverse Effect or a material adverse effect on the ability of
AICL to perform its obligations under the AICL Agreements and (y)
except as set forth in or contemplated in the Prospectuses.
(u) Xxxxxx Xxxxxxxx LLP, who have certified certain
financial statements of the Company and the Subsidiaries and delivered
their report with respect to the audited combined financial statements
and schedules included in the Prospectuses, are independent public
accountants with respect to the Company within the meaning of the Act
and the applicable published rules and regulations thereunder.
(v) There are no transfer taxes or other similar fees
or charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance by the Company
or sale by the Company of the International Securities.
(w) The Company has filed all foreign, federal, state
and local tax returns that are required to be filed or has requested
extensions thereof (except in any case in
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which the failure so to file would not have a Material Adverse Effect),
except as set forth in or contemplated in the Prospectuses and has paid
all taxes shown as payable on such tax returns and any other
assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except for any such assessment,
fine or penalty that is currently being contested in good faith or as
would not have a Material Adverse Effect, except as set forth in or
contemplated in the Prospectuses.
(x) No labor dispute with the employees of the Company
or any of the Subsidiaries exists or, to the knowledge of the Company
and Xx. Xxxxx X. Xxx, is threatened that could reasonably be expected
to have a Material Adverse Effect, except as set forth in or
contemplated in the Prospectuses.
(y) The Company and each of the Subsidiaries are
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent for the businesses
in which they are engaged; neither the Company nor any such Subsidiary
has been refused any insurance coverage sought or applied for; and
neither the Company nor any such Subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost
that would not have a Material Adverse Effect, except as set forth in
or contemplated in the Prospectuses.
(z) No Subsidiary is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any
other distribution on such Subsidiary's capital stock, from repaying to
the Company any loans or advances to such Subsidiary from the Company
or from transferring any of such Subsidiary's property or assets to the
Company or any other Subsidiary of the Company, except as described in
or contemplated in the Prospectuses.
(aa) The Company and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses (except in any case in which the failure so
to possess any such certificate, authorization or permit would not,
individually or in the aggregate, have a Material Adverse Effect), and
neither the Company nor any such Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, could
reasonably be expected to have a Material Adverse Effect, except as set
forth in or contemplated in the Prospectuses.
(bb) Neither the Company nor any of the Subsidiaries is
in violation of any federal or state law or regulation relating to
occupational safety and health or to the storage, handling or
transportation of hazardous or toxic materials and the Company and the
Subsidiaries have received all permits, licenses or other approvals
required of them under applicable federal and state occupational safety
and health and environmental laws
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and regulations to conduct their respective businesses, and the Company
and each such Subsidiary is in compliance with all terms and conditions
of any such permit, license or approval, except any such violation of
law or regulation, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals which would not, singly or in the
aggregate, have a Material Adverse Effect, except as set forth in or
contemplated in the Prospectuses.
(cc) The Company and each of the Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(dd) Each of the Company, the Subsidiaries and, to the
knowledge of the Company and Xx. Xxxxx X. Xxx, AICL owns or has
obtained licenses for the patents, patent applications, trade and
service marks, trade secrets and other intellectual properties
referenced or described in the Prospectuses as being owned by or
licensed to it (collectively, the "Intellectual Property"). Except as
set forth in the Prospectuses under the caption "Business --
Intellectual Property," (a) to the knowledge of the Company and Xx.
Xxxxx X. Xxx, there are no rights of third parties to any such
Intellectual Property owned by the Company or any of the Subsidiaries;
(b) to the knowledge of the Company and Xx. Xxxxx X. Xxx, there is no
material infringement by third parties of any such Intellectual
Property (other than with respect to the "Gold Gate" patent of the
Company); (c) there is no pending or, to the knowledge of the Company
and Xx. Xxxxx X. Xxx, threatened action, suit, proceeding or claim by
others challenging the rights of the Company, any Subsidiary or AICL in
or to any such Intellectual Property, and the Company is unaware of any
facts which would form a reasonable basis for any such claim; (d) there
is no pending or, to the knowledge of the Company and Xx. Xxxxx X. Xxx,
threatened action, suit, proceeding or claim by others challenging the
validity or scope of any such Intellectual Property; (e) there is no
pending or, to the knowledge of the Company and Xx. Xxxxx X. Xxx,
threatened action, suit, proceeding or claim by others that the
Company, any Subsidiary or AICL infringes or otherwise violates any
patent, trademark, copyright, trade secret or other proprietary rights
of others; (f) to the knowledge of the Company and Xx. Xxxxx X. Xxx,
there is no U.S. patent or published U.S. patent application which
contains claims that dominate or may dominate any Intellectual Property
described in the Prospectuses as being owned by or licensed to the
Company, any Subsidiary or AICL or that interferes with the issued or
pending claims of any such Intellectual Property; and (g) there is no
prior art of which the Company is aware that may render any U.S. patent
held by the Company, any Subsidiary or AICL invalid or any U.S. patent
application held by the Company, any Subsidiary or AICL unpatentable
which has not been disclosed to the U.S. Patent and Trademark Office.
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Each of the Company, the Subsidiaries and, to the knowledge of the
Company and Xx. Xxxxx X. Xxx, AICL owns the Intellectual Property or
has the rights to the Intellectual Property that is necessary, in the
case of the Company and the Subsidiaries, to conduct the Company's
business as described in the Prospectuses or, in the case of AICL, to
perform its obligations under the AICL Agreements.
(ee) Neither the Company nor any of the Subsidiaries has
distributed nor will it distribute prior to the later of (i) the
Closing Date, or any date on which International Option Shares or
International Option Notes are to be purchased, as the case may be, and
(ii) completion of the distribution of the International Securities,
any offering material in connection with the offering and sale of the
International Securities other than any Offering Preliminary
Prospectuses, the Offering Prospectuses, the Offering Registration
Statement and other materials, if any, permitted by the Act.
(ff) Neither the Company nor its affiliated purchasers,
as defined in Rule 100 of Regulation M ("Regulation M") under the
Exchange Act, either alone or with one or more other persons, (i) has
taken, either directly or indirectly, any action which was designed to
cause or result in, or which has constituted, or which might reasonably
be expected to cause or result in, stabilization or manipulation of the
price of any security of the Company ("Subject Securities") in
connection with the offering of the Securities or (ii) will bid for or
purchase any Subject Securities of the Company or any other covered
securities (within the meaning of Regulation M) relating to the Subject
Securities (together with Subject Securities, "Covered Securities"), or
attempt to induce any person to bid for or purchase any Covered
Securities, in either case, for the purpose of creating actual or
apparent active trading in, or raising the price of the Securities.
(gg) There are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course of
business) or guarantees of indebtedness by the Company or any of the
Subsidiaries to or for the benefit of any of the officers or directors
of the Company or any Subsidiary or any of the members of the families
of any of them, which loans, advances or guarantees are required to be,
and are not, disclosed in the Registration Statements and Prospectuses.
(hh) There have not been, and there are not proposed,
any transactions or agreements between the Company or any of the
Subsidiaries on the one hand and the officers, directors or
stockholders of the Company or any of the Subsidiaries on the other,
which transactions or agreements are required to be, and are not,
disclosed in the Registration Statements and Prospectuses.
(ii) No officer or director of the Company is in breach
or violation of any employment agreement, non-competition agreement,
confidentiality agreement, or other agreement restricting the nature or
scope of employment to which such officer or director is a party, other
than such breaches or violations which would not, individually or in
the aggregate, have a Material Adverse Effect; neither the current
conduct nor the proposed
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conduct of the Company's business, as described in the Registration
Statements and Prospectuses, will result in a breach or violation of
any such agreement.
(jj) There are no outstanding options to acquire shares
of capital stock of the Company that are vested and exercisable, and
there are no outstanding options to acquire shares of capital stock of
the Company that can, by their terms, become exercisable within 180
days of the date hereof.
Any certificate signed by any officer of the Company and
delivered to the International Representatives or counsel for the International
Underwriters in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to
each International Underwriter.
B. Each Selling Stockholder represents and warrants to, and
agrees with, each International Underwriter that:
(a) Such Selling Stockholder has full legal right,
capacity, power and authority to enter into and perform this Agreement
and the Custody Agreement (as defined below) and to sell, transfer,
assign and deliver in the manner provided in this Agreement and the
Custody Agreement the International Shares to be sold by such Selling
Stockholder hereunder.
(b) Such Selling Stockholder is the lawful owner of the
International Shares to be sold by such Selling Stockholder hereunder
and upon sale and delivery of, and payment for, such International
Shares, as provided herein, such Selling Stockholder will convey good
and valid title to such International Shares, free and clear of all
liens, encumbrances, equities and claims whatsoever.
(c) Such Selling Stockholder has not taken and will not
take, directly or indirectly, any action designed to or which has
constituted or which might reasonably be expected to cause or result,
under the Exchange Act or otherwise, in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of the International Shares and has not effected any sales of
shares of Common Stock which, if effected by the issuer, would be
required to be disclosed in response to Item 701 of Regulation S-K
under the Act.
(d) Certificates in negotiable form for such Selling
Stockholder's International Shares have been placed in custody, for
delivery pursuant to the terms of this Agreement, under a Custody
Agreement duly executed and delivered by such Selling Stockholder, in
the form heretofore furnished to you (the "Custody Agreement") with
___________ of ___________, as Custodian (the "Custodian"); the
International Shares represented by the certificates so held in custody
for each Selling Stockholder are subject to the interests hereunder of
the International Underwriters, the Company and the other Selling
Stockholders; the arrangements for custody and delivery of such
certificates, made by such Selling Stockholder hereunder and under the
Custody Agreement, are not subject to termination by any acts of such
Selling Stockholder, or by operation of law,
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whether by the death or incapacity of such Selling Stockholder or the
occurrence of any other event; and if any such death, incapacity or any
other such event shall occur before the delivery of such International
Shares hereunder, certificates for the International Shares will be
delivered by the Custodian in accordance with the terms and conditions
of this Agreement and the Custody Agreement as if such death,
incapacity or other event had not occurred, regardless of whether or
not the Custodian shall have received notice of such death, incapacity
or other event.
(e) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
by such Selling Stockholder of the transactions contemplated herein,
except such as may have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the International Shares by the
International Underwriters and such other approvals as have been
obtained.
(f) Neither the sale of the International Shares being
sold by such Selling Stockholder nor the consummation of any other of
the transactions herein contemplated by such Selling Stockholder or the
fulfillment of the terms hereof by such Selling Stockholder will
conflict with, result in a breach or violation of, or constitute a
default under any law or the terms of any indenture or other agreement
or instrument to which such Selling Stockholder is a party or bound, or
any judgment, order or decree applicable to such Selling Stockholder of
any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over such Selling Stockholder.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company and the Selling Stockholders agree to sell to each International
Underwriter, and each International Underwriter agrees, severally and not
jointly, to purchase from the Company and the Selling Stockholders, at a
purchase price of $________ per share, the amount of the International
Underwritten Shares set forth opposite such International Underwriter's name in
Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby grants
an option to the several International Underwriters to purchase, severally and
not jointly, up to 1,050,000 shares of the International Option Shares at the
same purchase price per share as the International Underwriters shall pay for
the International Underwritten Shares. Said option may be exercised only to
cover over-allotments in the sale of the International Underwritten Shares by
the International Underwriters. Said option may be exercised in whole or in part
at any time (but not more than once) on or before the 30th day after the date of
the Offering International Prospectus upon written or telegraphic notice by the
International Representatives to the Company setting forth the number of shares
of the International Option Shares as to which the several International
Underwriters are exercising the option and the settlement date; provided,
however, that to the extent that both the option provided for in this Section
2(b) and the option provided for in Section 2(b) of the U.S. Underwriting
Agreement are exercised, (i) such exercises shall occur on the same date and
(ii) the settlement dates in respect thereof shall be the same date. Delivery of
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the International Option Shares, and payment therefor, shall be made as provided
in Section 3 hereof. The number of shares of the International Option Shares to
be purchased by each International Underwriter shall be the same percentage of
the total number of shares of the International Option Shares to be purchased by
the several International Underwriters as such International Underwriter is
purchasing of the International Underwritten Shares, subject to such adjustments
as you in your absolute discretion shall make to eliminate any fractional
shares.
(c) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company agrees to sell
to each International Underwriter, and each International Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
___% of the principal amount thereof, plus accrued interest, if any, on the
International Underwritten Notes from April ___, 1998, to the Closing Date, the
principal amount of the International Underwritten Notes set forth opposite such
International Underwriter's name in Schedule I hereto.
(d) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby grants
an option to the several International Underwriters to purchase, severally and
not jointly, the International Option Notes at a purchase price of _____% of the
principal amount thereof, plus accrued interest, if any, from April __, 1998, to
the settlement date for the International Option Notes. Said option may be
exercised only to cover over-allotments in the sale of the International
Underwritten Notes by the International Underwriters. Said option may be
exercised in whole or in part at any time (but not more than once) on or before
the 30th day after the date of the Offering International Prospectus upon
written or telegraphic notice by the International Representatives to the
Company setting forth the principal amount of International Option Notes as to
which the several International Underwriters are exercising the option and the
settlement date; provided, however, that to the extent that both the option
provided for in this Section 2(d) hereof and the option provided for in Section
2(d) of the U.S. Underwriting Agreement are exercised, (i) such exercises shall
occur on the same date and (ii) the settlement dates in respect thereof shall be
the same date. Delivery of certificates for the International Option Notes, and
payment therefor, shall be made as provided in Section 3 hereof. The principal
amount of International Option Notes to be purchased by each International
Underwriter shall be the same percentage of the total principal amount of
International Option Notes to be purchased by the International Underwriters as
such International Underwriter is purchasing of the International Underwritten
Notes, subject to such adjustments as you in your absolute discretion shall make
to eliminate any fractional principal amounts.
3. Delivery and Payment. Delivery of and payment for the
International Underwritten Shares, the International Underwritten Notes, the
International Option Shares (if the option provided for in Section 2(b) hereof
shall have been exercised on or before the third Business Day prior to the
Closing Date) and the International Option Notes (if the option provided for in
Section 2(d) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
________ ___, 1998, or at such time on such later date not more than three
Business Days after the foregoing date as the International Representatives
shall designate, which date and time may be postponed
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by agreement among the International Representatives, the Company and the
Selling Stockholders or as provided in Section 9 hereof (such date and time of
delivery and payment for the International Securities being herein called the
"Closing Date"). Delivery of the International Securities shall be made to the
International Representatives for the respective accounts of the several
International Underwriters against payment by the several International
Underwriters through the International Representatives of (i) $___________ by
wire transfer payable in same-day funds to an account of the Korea Development
Bank specified by the Company and (ii) the balance of the respective aggregate
purchase prices of the International Securities being sold by the Company and
each of the Selling Stockholders to or upon the order of the Company and each of
the Selling Stockholders by wire transfer payable in same-day funds to the
accounts specified by the Company and each of the Selling Stockholders or by
such other method as shall be agreed upon by the International Representatives
and the Company and such Selling Stockholders. Delivery of the International
Securities shall be made through the facilities of the Depository Trust Company
unless the International Representatives shall otherwise instruct.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the U.S. Underwriting Agreement.
Each Selling Stockholder will pay all applicable state
transfer taxes, if any, involved in the transfer to the several International
Underwriters of the International Shares to be purchased by them from such
Selling Stockholders and the respective International Underwriters will pay any
additional stock transfer taxes involved in further transfers.
If the option provided for in Section 2(b) and/or Section 2(d)
hereof is exercised on or after the second Business Day prior to the Closing
Date, the Company will deliver (at the expense of the Company) to the
International Representatives, on the date(s) specified by the International
Representatives (which shall be within three Business Days after exercise of
said option(s)), the International Option Shares and/or International Option
Notes against payment by the several International Underwriters through the
International Representatives of the purchase price thereof to or upon the order
of the Company by wire transfer payable in same-day funds to an account
specified by the Company or by such other method as shall be agreed upon by the
International Representatives and the Company. Delivery of the International
Option Shares and/or International Option Notes shall be made through the
facilities of the Depositary Trust Company unless the International
Representatives shall otherwise instruct. If settlement for the International
Option Shares and/or International Option Notes occurs after the Closing Date,
the Company will deliver to the International Representatives on the settlement
date(s), and the obligation of the International Underwriters to purchase the
International Option Shares and/or International Option Notes, as the case may
be, shall be conditioned upon receipt of, supplemental opinions, certificates
and letters confirming as of such date(s) the opinions, certificates and letters
delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
International Underwriters propose to offer the International Securities for
sale to the public as set forth in the Offering Prospectuses.
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5. Other Agreements.
A. The Company agrees with the several International
Underwriters that:
(a) The Company will use its best efforts to cause the
Offering Registration Statement, if not effective at the Execution
Time, and any amendment thereof to become effective. Prior to the
termination of the offering of the Securities, the Company will not
file any amendment of the Offering Registration Statement or supplement
to the Offering Prospectuses or any Rule 462(b) Registration Statement
unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Offering Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Offering Prospectuses is
otherwise required under Rule 424(b), the Company will cause the
Offering Prospectuses, properly completed, and any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the International Representatives of such timely
filing. The Company will promptly advise the International
Representatives (i) when the Offering Registration Statement, if not
effective at the Execution Time, shall have become effective, (ii) when
the Offering Prospectuses, and any supplement thereto, shall have been
filed (if required) with the Commission pursuant to Rule 424(b) or when
any Rule 462(b) Registration Statement shall have been filed with the
Commission, (iii) when, prior to termination of the offering of the
Securities, any amendment to the Offering Registration Statement shall
have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Offering Registration Statement or
any Rule 462(b) Registration Statement, or for any supplement to the
Offering Prospectuses or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Offering Registration Statement or the institution
or threatening of any proceeding for that purpose and (vi) of the
receipt by the Company of any notification in writing with respect to
the suspension of the qualification of the Securities for sale in any
jurisdiction or with respect to the initiation or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any
such qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which either of the Offering Prospectuses as then
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Offering
Registration Statement or supplement either of the Offering
Prospectuses to comply with the Act or the rules thereunder, the
Company promptly will (i) prepare and file with the Commission, subject
to the second sentence of paragraph (a) of this Section 5, an amendment
or supplement which will correct such statement or
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omission or effect such compliance and (ii) supply any supplemented
Offering Prospectuses to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the International
Representatives an earnings statement or statements of the Company and
the Subsidiaries which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
(d) The Company will furnish to the International
Representatives and counsel for the International Underwriters, without
charge, signed copies of the Registration Statement (including exhibits
thereto) and to each other International Underwriter a copy of the
Offering Registration Statement (without exhibits thereto) and, so long
as delivery of a prospectus by an International Underwriter or dealer
may be required by the Act, as many copies of each Offering
International Preliminary Prospectus and the Offering International
Prospectus and any supplement thereto as the International
Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to
the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the International Representatives may designate, will
maintain such qualifications in effect so long as required for the
distribution of the International Securities and will pay any fee of
the NASD, in connection with its review of the offering; provided,
however, that the Company shall not be required in connection
therewith, as a condition thereof, to qualify as a foreign corporation
or to execute a general consent to service of process in any
jurisdiction or subject itself to taxation as doing business in any
jurisdiction.
(f) The Company will not, for a period of 180 days
following the Execution Time, without the prior written consent of SBI,
offer, pledge, sell or contract to sell, or otherwise dispose of (or
enter into any transaction which is designed to, or could be expected
to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by
the Company or any affiliate of the Company or any person in privity
with the Company or any affiliate of the Company), directly or
indirectly, or announce the offering of, any other shares of Common
Stock or any securities or options convertible into, or exchangeable or
exercisable for, shares of Common Stock (other than the Notes);
provided, however, that the Company may grant options and may issue and
sell shares of Common Stock pursuant to any employee stock option plan,
stock ownership plan or dividend reinvestment plan of the Company that
was approved by the Board of Directors of the Company prior to the
Execution Time and the Company may issue shares of Common Stock
issuable upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time.
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(g) The Company will use the net proceeds to the
Company of the offering of the Securities as described under the
heading "Use of Proceeds" in the Offering Prospectuses.
(h) The Company will use its best efforts to have the
Notes approved for quotation on the Nasdaq Stock Market.
(i) The Company will use its best efforts to have
Xxxxxx Xxxxxxxx LLP issue, on or prior to May 15, 1998 (or, to the
extent such date is prior to the Closing Date, within _____ Business
Days after the Closing Date), a revised audit report with respect to
the combined financial statements of the Company contained in the
Offering Prospectuses, which audit report shall not contain any
qualification as to the Company's ability to continue as a going
concern.
(j) The Company confirms as of the date hereof that it
is in compliance with all provisions of Section 1 of Laws of Florida,
Chapter 92-198, An Act Relating to Disclosure of Doing Business with
Cuba, and the Company further agrees that if it commences engaging in
business with the government of Cuba or with any person or affiliate
located in Cuba after the date the Offering Registration Statement
becomes or has become effective with the Commission or with the Florida
Department of Banking and Finance (the "Department"), whichever date is
later, or if the information reported in the Offering Prospectuses, if
any, concerning the Company's business with Cuba or with any person or
affiliate located in Cuba changes in any material way, the Company will
provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
B. Each Selling Stockholder agrees with the several
International Underwriters that it will not during the period of 180 days
following the Execution Time, without the prior written consent of SBI or unless
pursuant to the Securities Loan Agreement, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce the offering of, any
other shares of Common Stock beneficially owned by such person, or any
securities convertible into, or exchangeable for, shares of Common Stock other
than shares of Common Stock disposed of as bona fide gifts.
C.(a) Each International Underwriter agrees that (i) it is not
purchasing any of the International Securities for the account of any
United States or Canadian Person, (ii) it has not offered or sold, and
will not offer or sell, directly or indirectly, any of the
International Securities or distribute any Offering International
Prospectus to any person in the United States or Canada, or to a United
States or Canadian Person, and (iii) any dealer to whom it may sell any
of the International Securities will represent that it is not
purchasing for the account of any United States or Canadian Person and
agree that it will not offer or resell, directly or indirectly, any of
the International Securities in the United States or Canada, or to a
United States or Canadian Person or to any other dealer who does not so
represent and agree; provided, however, that the foregoing shall not
restrict (i) purchases and sales between the International Underwriters
on the one hand and the
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U.S. Underwriters on the other hand pursuant to the Agreement Between
U.S. Underwriters and International Underwriters, (ii) stabilization
transactions contemplated under the Agreement Between International
Underwriters and U.S. Underwriters, conducted through SBI (or through
the International Representatives and U.S. Representatives) as part of
the distribution of the Securities, and (iii) sales to or through (or
distributions of Offering International Prospectuses or Offering
International Preliminary Prospectuses to) persons not United States or
Canadian Persons who are investment advisors, or who otherwise exercise
investment discretion, and who are purchasing for the account of any
United States or Canadian Person.
The agreement of the International Underwriters set forth in
the above paragraph shall terminate upon the earlier of the following
events:
(i) a mutual agreement of the International
Representatives and the U.S. Representatives to terminate the
selling restrictions set forth in such paragraph and in
Section 5C of the International Underwriting Agreement; or
(ii) the expiration of a period of 30 days after the
Closing Date, unless (A) the International Representatives
shall have given notice to the Company and the U.S.
Representatives that the distribution of the International
Securities by the International Underwriters has not yet been
completed, or (B) the U.S. Representatives shall have given
notice to the Company and the International Underwriters that
the distribution of the U.S. Securities by the U.S.
Underwriters has not yet been completed. If such notice by the
International Representatives or the U.S. Representatives is
given, the agreements set forth in such paragraph shall
survive until the earlier of (1) the event referred to in
clause (i) above or (2) the expiration of an additional period
of 30 days from the date of any such notice.
(b) Each International Underwriter severally represents
and agrees that:
(i) it has not offered or sold and, prior to the
expiration of six months from the closing of the offering of
the International Securities, will not offer or sell any
International Securities in the United Kingdom other than to
persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (whether as
principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will
not result in an offer to the public within the meaning of the
U.K. Public Offers of Securities Regulations 1995;
(ii) it has complied and will comply with all
applicable provisions of the U.K. Financial Services Xxx 0000
with respect to anything done by it in relation to the
International Securities in, from or otherwise involving the
United Kingdom; and
(iii) it has only issued or passed on and will only
issue or pass on in the United Kingdom any document received
by it in connection with the issue of the
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International Securities to a person who is of a kind
described in Article 11(3) of the U.K. Financial Services Xxx
0000 (Investment Advertisements) (Exemptions) Order 1996 or is
a person to whom such document may otherwise lawfully be
issued or passed on.
6. Conditions to the Obligations of the International
Underwriters. The obligations of the International Underwriters to purchase (i)
the International Underwritten Shares and the International Underwritten Notes
and (ii) the International Option Shares and the International Option Notes, as
the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders contained
herein as of the Execution Time, the Closing Date and any settlement date
pursuant to Section 3 hereof, to the accuracy of the statements of the Company
and the Selling Stockholders made in any certificates pursuant to the provisions
hereof, to the performance by the Company and the Selling Stockholders of their
respective obligations under this Agreement and to the following additional
conditions:
(a) If any Registration Statement has not become
effective prior to the Execution Time, unless the International
Representatives agree in writing to a later time, such Registration
Statement will become effective not later than (i) 6:00 PM, New York
City time, on the date of determination of the public offering price of
the Securities, if such determination occurred at or prior to 3:00 PM,
New York City time, on such date or (ii) 9:30 AM, New York City time,
on the Business Day following the day on which the public offering
price of the Securities was determined, if such determination occurred
after 3:00 PM, New York City time, on such date; if filing of any of
the Prospectuses, or any supplement thereto, is required pursuant to
Rule 424(b), the Prospectuses, and any such supplement, will be filed
in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of any Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) The Company shall have furnished to the
International Representatives the opinion of Xxxxxx Xxxxxxx Xxxxxxxx &
Xxxxxx, counsel for the Company, dated the Closing Date, to the effect
that:
(i) each of the Company and the Subsidiaries
chartered or organized under the laws of any state of the
United States (the "U.S. Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and
authority to own its properties and conduct its business as
described in the Prospectuses;
(ii) all the outstanding shares of capital stock
of each U.S. Subsidiary have been duly and validly authorized
and issued and are fully paid and nonassessable, and, except
as otherwise set forth in the Prospectuses, all outstanding
shares of capital stock of the U.S. Subsidiaries are owned by
the
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Company, either directly or through wholly owned Subsidiaries,
free and clear of any perfected security interest and, to the
knowledge of such counsel, any other security interests,
claims, liens or encumbrances;
(iii) the capital stock of the Company conforms
as to legal matters in all material respects to the
description thereof contained in the Prospectuses; the
outstanding shares of Common Stock (including the Shares being
sold hereunder by the Selling Stockholders) have been duly and
validly authorized and issued and are fully paid and
nonassessable; the Shares have been duly and validly
authorized and, when issued and delivered to and paid for by
the International Underwriters pursuant to this Agreement and
by the U.S. Underwriters pursuant to the U.S. Underwriting
Agreement, will be fully paid and nonassessable; the Shares
have been duly authorized for listing, subject to official
notice of issuance, on the Nasdaq National Market; the
certificates for the Shares are in valid and sufficient form;
the holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights to
subscribe for the Shares under the Articles of Incorporation
or bylaws of the Company or under the laws of the State of
Delaware; and, to the knowledge of such counsel, except as set
forth in the Prospectuses, no options, warrants or other
rights to purchase, agreements or other obligations to issue,
or rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership
interests in the Company are outstanding;
(iv) The Indenture has been duly authorized,
executed and delivered; the Indenture has been duly qualified
under the Trust Indenture Act and constitutes a valid and
binding obligation of the Company; the Notes have been duly
authorized and, when executed by the Company and authenticated
in accordance with the terms of the Indenture and paid for by
the holders thereof, will constitute valid, binding and
enforceable obligations of the Company entitled, to the
benefits provided by the Indenture, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors'
rights generally and to general principles of equity; the
shares of Common Stock issuable upon conversion of the Notes
have been duly authorized for listing, subject to official
notice of issuance, on the Nasdaq National Market; the holders
of the outstanding shares of capital stock of the Company are
not entitled, under the Articles of Incorporation or bylaws of
the Company or under the laws of the State of Delaware, to any
preemptive or other rights to subscribe for the Notes or the
shares of Common Stock issuable upon the conversion thereof;
the shares of Common Stock initially issuable upon conversion
of the Notes have been duly and validly authorized and
reserved for issuance upon such conversion and, when issued
upon conversion, will be validly issued, fully paid and
nonassessable; and the Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the
Offering Prospectuses.
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(v) to the knowledge of such counsel, there is
no pending action, suit or proceeding, or any written threat
thereof, by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or
any of the Subsidiaries of a character required to be
disclosed in any Registration Statement which is not
adequately disclosed in the Prospectuses, and there is no
franchise, contract or other document of a character required
to be described in any Registration Statement or Prospectus,
or to be filed as an exhibit, which is not described or filed
as required; and the statements in the Prospectuses under the
headings "Reorganization," "Description of Capital Stock,"
"Description of the Convertible Notes," "Shares Eligible for
Future Sale" and "Certain United States Federal Tax
Consequences to Non-United States Holders of Common Stock and
Convertible Notes," insofar as such statements constitute a
summary of legal matters referred to therein, fairly summarize
the information called for with respect to such legal matters;
(vi) the Registration Statements have become
effective under the Act; any required filing of the
Prospectuses, and of any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no
stop order suspending the effectiveness of any Registration
Statement has been issued, no proceedings for that purpose
have been instituted or threatened and the Registration
Statements and the Prospectuses (other than the financial
statements and other financial and statistical information
contained therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Act and the rules thereunder;
and such counsel has no reason to believe that on the
Effective Date or at the Execution Time the Registration
Statements contained any 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 Prospectuses as of its date and on the
Closing Date included or includes any untrue statement of a
material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in
each case, other than the financial statements and other
financial information contained therein, as to which such
counsel need express no opinion);
(vii) each of this Agreement and the U.S.
Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(viii) no consent, approval, authorization, filing
with or order of any court or governmental agency or body is
required in connection with the transactions contemplated
herein or in the U.S. Underwriting Agreement, except such as
have been obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the
International Underwriters and the U.S. Underwriters in the
manner contemplated in this Agreement and the U.S.
Underwriting Agreement
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and in the Offering Prospectuses and such other approvals
(specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the
Securities nor the performance of the Company's obligations
hereunder or under the U.S. Underwriting Agreement nor the
fulfillment of the terms hereof or thereof will conflict with,
or result in a breach or violation of or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company or any of the U.S. Subsidiaries pursuant to, (i) the
charter or bylaws of the Company or any U.S. Subsidiary or
(ii) any U.S., California or Delaware statute, law, rule,
regulation, judgment, order or decree known to such counsel
applicable to the Company or any U.S. Subsidiary of any U.S.,
California or Delaware court, governmental body, arbitrator or
other authority having jurisdiction over the Company or any
U.S. Subsidiary or any of their respective properties;
(x) no holders of securities of the Company
have rights to the registration of such securities under the
Registration Statements;
(xi) each of the AICL Agreements has been duly
authorized, executed and delivered by the Company and the U.S.
Subsidiaries that are parties thereto (the "U.S. Subsidiary
Parties") and is a valid, binding and enforceable agreement of
the Company and the U.S. Subsidiary Parties, subject to
applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of
equity; neither the consummation of the transactions
contemplated in any of the AICL Agreements nor the fulfillment
of the terms thereof will conflict with, or result in a breach
or violation of or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
of the U.S. Subsidiary Parties pursuant to, the charter or
bylaws of the Company or any U.S. Subsidiary Party; and
(xii) the Company is not and, after giving effect
to the offering and sale of the Securities and application of
the proceeds thereof as described in the Prospectuses under
the caption "Use of Proceeds," will not be an "investment
company" within the meaning of the 1940 Act.
In rendering such opinion, such counsel may rely (A) as
to matters involving the application of laws of any jurisdiction other
than the State of California, the United States or the corporate laws
of the State of Delaware or, with respect to the opinion referred to in
sub-paragraph (iv) above, the laws of the State of New York (to the
extent such opinion relates to the validity and binding effect of the
Indenture), to the extent they deem proper and specify in such opinion,
upon the opinion of other counsel of good standing whom they believe to
be reliable and who are satisfactory to counsel for the International
Underwriters and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and
public officials. Such opinion
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may also contain customary qualifications and limitations. References
to the Prospectuses in this paragraph (b) include any supplements
thereto at the Closing Date.
(c) The Company shall have furnished to the
International Representatives the opinion of Xxxxx Xxxxxx, Esq., the
General Counsel of the Company, dated the Closing Date, to the effect
that:
(i) neither the issue and sale of the
Securities nor the consummation of any other of the
transactions contemplated herein or in the U.S. Underwriting
Agreement nor the fulfillment of the terms hereof or thereof
will conflict with, or result in a breach or violation of or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the U.S.
Subsidiaries pursuant to, (i) the charter or bylaws of the
Company or any U.S. Subsidiary or (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement known to such
counsel to which the Company or any U.S. Subsidiary is a party
or bound or to which its property is subject (except for such
breaches or violations which would not, individually or in the
aggregate, have a Material Adverse Effect) or (iii) any
Pennsylvania statute, law, rule, regulation, judgment, order
or decree applicable to the Company or any U.S. Subsidiary of
any Pennsylvania court, governmental body, arbitrator or other
authority having jurisdiction over the Company or any U.S.
Subsidiary or any of their respective properties; and
(ii) neither the consummation of the
transactions contemplated in any of the AICL Agreements nor
the fulfillment of the terms thereof will conflict with, or
result in a breach or violation of or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company or any of the U.S. Subsidiary Parties pursuant to, (i)
the charter or bylaws of the Company or any U.S. Subsidiary
Party or (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or
other agreement known to such counsel to which the Company or
any U.S. Subsidiary Party is a party or bound or to which
their respective property is subject (except for such breaches
or violations which would not, individually or in the
aggregate, have a Material Adverse Effect) or (iii) any
Pennsylvania statute, law, rule, regulation, judgment, order
or decree applicable to the Company or any U.S. Subsidiary
Party of any Pennsylvania court, governmental body, arbitrator
or other authority having jurisdiction over the Company or any
U.S. Subsidiary Party or any of their respective properties;
no consent, approval, authorization, filing with or order of
any U.S. court or governmental agency or body is required in
connection with the transactions contemplated in any of the
AICL Agreements, except __________ [LIST APPROVALS (IF ANY)
REQUIRED], each of which has been obtained.
In rendering such opinion, such counsel may rely as to
matters involving the application of laws of any jurisdiction other
than the State of Pennsylvania, the United States or the corporate laws
of the State of Delaware, to the extent he deems proper and
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specifies in such opinion, upon the opinion of other counsel of good
standing whom he believes to be reliable and who are satisfactory to
counsel for the International Underwriters. Such opinion may also
contain customary qualifications and limitations.
(d) The Company shall have furnished to the
International Representatives the opinion of Orloge, Del Costello,
Bacorro, Odulco, Calma & Carobonell, Philippine counsel for the
Company, dated the Closing Date, to the effect that:
(i) each of AAP, AAAP and AMI (the "Philippine
Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized, with
full corporate power and authority to own its properties and
conduct its business, and is duly qualified to do business as
a foreign corporation and is in good standing under the laws
of each jurisdiction which requires such qualification; and
(ii) all the outstanding shares of capital stock
of each Philippine Subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable,
and, except (i) such shares of AAP owned by AICL, which shares
do not exceed 40.1% of the outstanding shares of AAP, (ii)
such shares of each Phillipine Subsidiary owned by directors
thereof, which shares in each case do not exceed 0.1 % of the
outstanding shares of such Philippine Subsidiary, (iii)
3,446,476 shares of preferred stock of AAP, which shares are
owned by Integrated Microelectronics, Inc., and (iv) as
otherwise set forth in the Prospectuses, all outstanding
shares of capital stock of the Philippine Subsidiaries are
owned by the Company, either directly or through wholly owned
Subsidiaries, free and clear of any perfected security
interest and, to the knowledge of such counsel, after due
inquiry, any other security interests, claims, liens or
encumbrances.
In rendering such opinion, such counsel may rely as to
matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion
may also contain customary qualifications and limitations. References
to the Prospectuses in this paragraph (d) include any supplements
thereto at the Closing Date.
(e) The Company shall have furnished to the
International Representatives the opinion of Xxx & Xxxxx, Korean
counsel for the Company, dated the Closing Date, to the effect that:
(i) AICL has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the Republic of Korea, with full corporate power and
authority to own its properties and conduct its business as
described in the Prospectuses;
(ii) each of the AICL Agreements has been duly
executed and delivered by AICL and is a valid, binding and
enforceable agreement of AICL,
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subject to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and to general
principles of equity;
(iii) no consent, approval, authorization, filing
with or order of any court or governmental agency or body in
the Republic of Korea is required in connection with the
transactions contemplated in the AICL Agreements, except
_________________, each of which has been obtained; and
(iv) neither the consummation of any of the
transactions contemplated in the AICL Agreements nor the
fulfillment of the terms thereof will conflict with or result
in a breach or violation of the Articles of Incorporation of
AICL or any statute, law, rule or regulation of any regulatory
body, administrative agency, governmental body or other
authority in the Republic of Korea having jurisdiction over
AICL or any of its properties.
In rendering such opinion, such counsel may rely as to
matters of fact, to the extent they deem proper, on certificates of
responsible officers of AICL and public officials. Such opinion may
also contain customary qualifications and limitations. References to
the Prospectuses in this paragraph (e) include any supplements thereto
at the Closing Date.
(f) The Selling Stockholders shall have furnished to
the International Representatives the opinion of Wilson, Sonsini,
Xxxxxxxx & Xxxxxx, counsel for the Selling Stockholders, dated the
Closing Date, to the effect that:
(i) this Agreement, the U.S. Underwriting Agreement
and the Custody Agreement have been duly executed and
delivered by the Selling Stockholders and each Selling
Stockholder has full legal right, capacity, power and
authority to enter into and perform this Agreement, the U.S.
Underwriting Agreement and the Custody Agreement and to sell,
transfer, assign and deliver in the manner provided in this
Agreement, the U.S. Underwriting Agreement and the Custody
Agreement the Shares being sold by such Selling Stockholder
hereunder and thereunder;
(ii) upon the delivery by each Selling Stockholder to
the several International Underwriters and the several U.S.
Underwriters of certificates for the Shares being sold
hereunder and under the U.S. Underwriting Agreement by such
Selling Stockholder against payment therefor as provided
herein, the International Underwriters and the U.S.
Underwriters will have good and valid title to such Shares,
free and clear to the knowledge of such counsel of any adverse
claims;
(iii) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation by any Selling Stockholder of the transactions
contemplated herein or in the U.S. Underwriting Agreement,
except such as may have been obtained under the Act and such
as may be required under the blue sky laws of any jurisdiction
in connection with the
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purchase and distribution of the Shares by the International
Underwriters and the U.S. Underwriters and such other
approvals (specified in such opinion) as have been obtained;
(iv) neither the sale of the Shares being sold by any
Selling Stockholder nor the consummation of any other of the
transactions contemplated herein or in the U.S. Underwriting
Agreement by any Selling Stockholder or the fulfillment of the
terms hereof or thereof by any Selling Stockholder will
conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or bylaws of
such Selling Stockholder, or any judgment, order or decree
known to such counsel to be applicable to such Selling
Stockholder of any court, governmental body or arbitrator
having jurisdiction over such Selling Stockholder; and
(v) the Securities Loan Agreement has been duly
executed and delivered by Mr. and Xxx. Xxxxx X. Xxx; Mr. and
Xxx. Xxxxx X. Xxx have full legal right, capacity, power and
authority to enter into and perform the Securities Loan
Agreement and to lend, assign and deliver in the manner
provided in the Securities Loan Agreement the Borrowed Shares
being lent by Mr. and Xxx. Xxxxx X. Xxx thereunder; Mr. and
Xxx. Xxxxx X. Xxx have good and valid title to the Borrowed
Shares, free and clear to the knowledge of such counsel of any
adverse claims; no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation by Mr. and Xxx. Xxxxx X. Xxx of the
transactions contemplated in the Securities Loan Agreement,
except such as may have been obtained under the Act and such
as may be required under the blue sky laws of any jurisdiction
in connection with the borrowing and distribution of the
Borrowed Shares by SBI and such other approvals (specified in
such opinion) as have been obtained; and neither the lending
of the Borrowed Shares by Mr. and Xxx. Xxxxx X. Xxx nor the
consummation of any other of the transactions contemplated in
the Securities Loan Agreement by Mr. and Xxx. Xxxxx X. Xxx or
the fulfillment of the terms thereof by Mr. and Xxx. Xxxxx X.
Xxx will conflict with, result in a breach or violation of, or
constitute a default under any law or the terms of any
indenture or other agreement or instrument known to such
counsel and to which Mr. and Xxx. Xxxxx X. Xxx (or either of
them) are a party or bound, or any judgment, order or decree
known to such counsel to be applicable to Mr. and Xxx. Xxxxx
X. Xxx (or either of them) of any court, governmental body or
arbitrator having jurisdiction over either of them.
In rendering such opinion, such counsel may (A) rely
as to matters involving the application of laws of any jurisdiction
other than the State of California or Delaware or the United States, to
the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the International
Underwriters, (B) rely as to matters of fact, to the extent they deem
proper, on certificates of the Selling Stockholders (including Mr. and
Xxx. Xxxxx X. Xxx) and public officials and (C) with
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respect to the opinion in clause (ii) above, may assume each
International Underwriter and each U.S. Underwriter takes delivery of
the Shares without notice of any adverse claim. Such opinion may also
contain customary qualifications and limitations.
(g) The International Representatives shall have
received from Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the
International Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the International
Securities, the Registration Statements, the Prospectuses (together
with any supplement thereto) and other related matters as the
International Representatives may reasonably require, and the Company
and each Selling Shareholder shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(h) The Company shall have furnished to the
International Representatives a certificate of the Company, signed by
the Chairman of the Board or the President and the principal financial
or accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statements, the Prospectuses, any supplements to the
Prospectuses, this Agreement and the U.S. Underwriting Agreement and
that:
(i) the representations and warranties of the Company
in this Agreement and the U.S. Underwriting Agreement are true
and correct in all material respects on and as of the Closing
Date with the same effect as if made on the Closing Date and
the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at
or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
any Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectuses, there has been no
material adverse change in the condition (financial or other),
prospects, earnings, business or properties of the Company and
the Subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectuses.
(i) Each Selling Stockholder shall have furnished to
the International Representatives a certificate, signed by or on behalf
of such Selling Stockholder, dated the Closing Date, to the effect that
the signer of such certificate has carefully examined the Offering
Registration Statement, the Offering Prospectuses, any supplement to
the Offering Prospectuses, this Agreement and the U.S. Underwriting
Agreement and that the representations and warranties of such Selling
Stockholder in this Agreement and the
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U.S. Underwriting Agreement are true and correct in all material
respects on and as of the Closing Date to the same effect as if made on
the Closing Date.
(j) At the Execution Time and at the Closing Date,
Xxxxxx Xxxxxxxx LLP shall have furnished to the International
Representatives letters, dated respectively as of the Execution Time
and as of the Closing Date, in form and substance satisfactory to the
International Representatives, confirming that they are independent
accountants within the meaning of the Act and the applicable published
rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included in the Registration
Statements and the Prospectuses and reported on by them comply
in form in all material respects with the applicable
accounting requirements of the Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and the Subsidiaries; carrying out certain specified
procedures (but not an examination in accordance with
generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and the audit and
compensation committees of the Company and the Subsidiaries;
and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company and the Subsidiaries as to transactions and events
subsequent to December 31, 1997, nothing came to their
attention which caused them to believe that:
(1) with respect to the period
subsequent to December 31, 1997, there were any
changes, at a specified date not more than five
business days prior to the date of the letter, in the
long-term debt of the Company and the Subsidiaries or
capital stock of the Company or decreases in the
total stockholders' equity of the Company or
decreases in working capital of the Company and the
Subsidiaries as compared with the amounts shown on
the December 31, 1997 combined balance sheet included
in the Registration Statements and the Prospectuses,
or for the period from December 31, 1997 to such
specified date there were any decreases, as compared
with the corresponding period in the preceding
quarter, in revenues, net operating income or
interest expense or in total or per share amounts of
net income of the Company and the Subsidiaries,
except in all instances for changes or decreases set
forth in such letter, in which case the letter shall
be accompanied by an explanation by the Company as to
the significance thereof unless said explanation is
not deemed necessary by the International
Representatives;
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(2) the information included in the
Registration Statements and Prospectuses in response
to Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information) and Item 402
(Executive Compensation) of Regulation S-K under the
Act is not in conformity with the applicable
disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and the Subsidiaries) set forth in the Registration
Statements and the Prospectuses, including the information set
forth under the captions "Summary Financial Data" and
"Selected Financial Data" in the Prospectuses, agrees with the
accounting records of the Company and the Subsidiaries,
excluding any questions of legal interpretation.
References to the Prospectuses in this paragraph (j) include any
supplement thereto at the date of the letter.
(k) At the Execution Time and at the Closing Date,
Samil Accounting Corporation shall have furnished to the International
Representatives and the Company a letter or letters, dated respectively
as of the Execution Time and as of the Closing Date, in form and
substance satisfactory to the International Representatives and the
Company, confirming that they are independent accountants within the
meaning of the standards established for independent certified public
accountants in the Republic of Korea and stating in effect that they
have performed certain specified procedures as a result of which they
determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of
AICL) set forth in the Registration Statements and the Prospectuses,
including the information set forth under the captions "Risk Factors --
Dependence on Relationship with AICL; Potential Conflicts of Interest"
and "Relationship with Anam Industrial Co., Ltd." in the Prospectuses,
agrees with the accounting records of AICL, excluding any questions of
legal interpretation. References to the Prospectuses in this paragraph
(k) include any supplement thereto at the date of the letter.
(l) Subsequent to the Execution Time or, if earlier,
the dates as of which information is given in the Registration
Statements (exclusive of any amendment thereof) and the Prospectuses,
there shall not have been (i) any change or decrease specified in the
letter or letters referred to in paragraph (j) of this Section 6 or
(ii) any change, or any development involving a prospective change, in
or affecting the business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectuses the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of
the International Representatives, so material and adverse as to
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make it impractical or inadvisable to proceed with the offering or
delivery of the International Securities as contemplated by the
Registration Statements (exclusive of any amendment thereof) and the
Prospectuses.
(m) At the Execution Time, the Company shall have
furnished to the International Representatives and the U.S.
Representatives a letter substantially in the form of Exhibit A hereto
from each officer, director and shareholder (other than the Selling
Stockholders) of the Company, which persons are listed in Schedule III
hereto, addressed to the International Representatives and the U.S.
Representatives.
(n) Prior to the Closing Date, the Company shall have
furnished to the International Representatives such further
information, certificates and documents as the International
Representatives may reasonably request.
(o) The closing of the purchase of the U.S. Securities
to be issued and sold by the Company pursuant to the U.S. Underwriting
Agreement shall occur concurrently with the closing described herein.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the International Representatives and
counsel for the International Underwriters, this Agreement and all obligations
of the International Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the International Representatives. Notice of such
cancellation shall be given to the Company and each Selling Stockholder in
writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for
the International Underwriters, at 0 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, xx the
Closing Date.
7. Reimbursement of International Underwriters' Expenses. If
the sale of the International Securities provided for herein is not consummated
because any condition to the obligations of the International Underwriters set
forth in Section 6 hereof is not satisfied or because of any refusal, inability
or failure on the part of the Company or any Selling Stockholder to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the International Underwriters, the Company will reimburse the
International Underwriters severally through SBI on demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the International Securities. If the Company is required to make any
payments to the International Underwriters under this Section 7 because of any
Selling Stockholder's refusal, inability or failure to satisfy any condition to
the obligations of the International Underwriters set forth in Section 6, the
Selling Stockholders pro rata in proportion to the percentage of International
Shares to be sold by each shall reimburse the Company on demand for all amounts
so paid.
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8. Indemnification and Contribution. (a) The Company and Xx.
Xxxxx X. Xxx jointly and severally agree to indemnify and hold harmless each
International Underwriter (including without limitation SBI (the "Market Maker")
in its capacity as a market maker for the Securities and SBI (the "Independent
Underwriter") in its capacity as "qualified independent underwriter" (within the
meaning of NASD Conduct Rule 2720)), the directors, officers, employees and
agents of each International Underwriter, and each person who controls any
International Underwriter within the meaning of either the Act or the Exchange
Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Offering
Registration Statement or in any amendment thereof, or in any Offering
Preliminary Prospectus or in either of the Offering Prospectuses, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company and Xx. Xxxxx X. Xxx will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any International
Underwriter through the International Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the
Company or Xx. Xxxxx X. Xxx xxx otherwise have.
(b) Each International Underwriter severally agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Offering Registration Statement, and each person who
controls the Company within the meaning of either the Act or the Exchange Act
and Xx. Xxxxx X. Xxx, to the same extent as the foregoing indemnity from the
Company and Xx. Xxxxx X. Xxx to each International Underwriter, but only with
reference to written information relating to such International Underwriter
furnished to the Company by or on behalf of such International Underwriter
through the International Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any International Underwriter may
otherwise have. The Company and Xx. Xxxxx X. Xxx acknowledge that the statements
set forth in the last paragraph of the front cover page, the last paragraph of
the inside front cover page and, under the heading "Underwriting", the _______
paragraphs in the Offering Registration Statement, any Offering Preliminary
Prospectus and the Offering Prospectuses and any amendment or supplement thereto
constitute the only information furnished in writing by or on behalf of the
several International Underwriters for inclusion in any Offering Preliminary
Prospectus or the Offering Prospectuses and any amendment or supplement thereto.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is
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34
to be made against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the failure so to
notify the indemnifying party (i) will not relieve it from any liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ one separate counsel (and one
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate (and local) counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party in writing to
employ separate (and local) counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and Xx. Xxxxx X. Xxx, jointly and
severally, and the International Underwriters agree to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company, Xx. Xxxxx X. Xxx and one or more
of the International Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and Xx.
Xxxxx X. Xxx on the one hand and by the International Underwriters on the other
from the offering of the International Securities; provided, however, that in no
case shall any International Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the International
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the International Securities purchased by such
International Underwriter hereunder.
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35
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company and Xx. Xxxxx X. Xxx, jointly and severally, and the
International Underwriters shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company and Xx. Xxxxx X. Xxx on the one hand and of the International
Underwriters on the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company and Xx. Xxxxx X. Xxx shall be deemed to be
equal to the total net proceeds from the offering (before deducting expenses)
received by them, and benefits received by the International Underwriters shall
be deemed to be equal to the total underwriting discounts and commissions, in
each case as set forth on the cover page of the Offering International
Prospectus. Benefits received by the Independent Underwriter in its capacity as
"qualified independent underwriter" shall be deemed to be equal to the
compensation received by the Independent Underwriter for acting in such
capacity. Relative fault shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
provided by the Company or Xx. Xxxxx X. Xxx on the one hand or by the
International Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company, Xx. Xxxxx X. Xxx and the
International Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an International Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an
International Underwriter shall have the same rights to contribution as such
International Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Offering Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) The liability of each Selling Stockholder under such
Selling Stockholder's representations and warranties contained in Section 1
hereof and under the indemnity and contribution agreements contained in this
Section 8 shall be limited to an amount equal to the initial public offering
price of the International Shares sold by such Selling Stockholder to the
International Underwriters, less the underwriting discounts and commissions paid
thereon to the International Underwriters. The Company and the Selling
Stockholders may agree, as among themselves and without limiting the rights of
the International Underwriters under this Agreement, as to the respective
amounts of such liability for which they each shall be responsible.
(f) The Company and Xx. Xxxxx X. Xxx shall not have any
liability under this Section 8 with respect to any losses, claims, damages or
liabilities of an International Underwriter if copies of the Offering
International Prospectus, as then amended or supplemented,
35
36
were furnished by the Company to the International Underwriters as required by
this Agreement, and such copies of the Offering International Prospectus were
not sent or given by or on behalf of such International Underwriter, as required
by law, to the purchasers of the International Securities and if the Offering
International Prospectus, as so amended or supplemented, would have cured the
defect giving rise to such losses, claims, damages or liabilities.
9. Default by an International Underwriter. If any one or more
International Underwriters shall fail to purchase and pay for any of the
International Shares or International Notes agreed to be purchased by such
International Underwriter or International Underwriters hereunder and such
failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining International Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of International Shares or International Notes, as
the case may be, set forth opposite their names in Schedule I hereto bears to
the aggregate amount of International Shares or International Notes, as the case
may be, set forth opposite the names of all the remaining International
Underwriters) the International Shares or International Notes which the
defaulting International Underwriter or International Underwriters agreed but
failed to purchase; provided, however, that in the event that (x) the aggregate
amount of International Shares which the defaulting International Underwriter or
International Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate amount of International Shares set forth in Schedule I hereto or (y)
the aggregate principal amount of International Notes which the defaulting
International Underwriter or International Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate principal amount of International
Notes set forth in Schedule I hereto, then the remaining International
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the International Shares or International Notes,
as the case may be, and if such nondefaulting International Underwriters do not
purchase all the International Shares or International Notes, as the case may
be, this Agreement will terminate without liability to any nondefaulting
International Underwriter, the Selling Stockholders or the Company. In the event
of a default by any International Underwriter as set forth in this Section 9,
the Closing Date shall be postponed for such period, not exceeding five Business
Days, as the International Representatives shall determine in order that the
required changes in the Registration Statements and the Prospectuses or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting International Underwriter of its
liability, if any, to the Company, the Selling Stockholders and any
nondefaulting International Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the International Representatives, by
notice given to the Company prior to delivery of and payment for the
International Securities, if prior to such time (i) trading in the Company's
Common Stock shall have been suspended by the Commission or the Nasdaq National
Market or trading in securities generally on the New York Stock Exchange or the
Nasdaq National Market shall have been suspended or limited or minimum prices
shall have been established on such Exchange or National Market, (ii) a banking
moratorium shall have been declared by either Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other
36
37
calamity or crisis, the effect of which on financial markets is such as to
make it, in the sole judgment of the International Representatives,
impracticable or inadvisable to proceed with the offering or delivery of the
International Securities as contemplated in the Offering International
Prospectus.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of each Selling Stockholder and of the International
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
International Underwriter, any Selling Stockholder or the Company or any of the
officers, directors or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the International Securities. The
provisions of Sections 7 and 8 and the last sentence of Section 9 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the International
Representatives, will be mailed, delivered or telefaxed to the SBI General
Counsel (fax no.: (212) ______________) and confirmed to the General Counsel,
care of Xxxxx Xxxxxx Inc., 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: General Counsel; or, if sent to the Company, will be mailed,
delivered or telefaxed to Xxxxx X. Xxx (fax no.: (000) 000-0000) and confirmed
to it at 0000 Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000, attention of
the Legal Department, with a copy to Xxxxx X. Xxxxxxx (fax no.: (000) 000-0000)
at Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx
00000; or, if sent to the Selling Stockholders, will be mailed, delivered, or
telefaxed to Xxxxx X. Xxx (fax no.: (000) 000-0000) and confirmed to it at the
address set forth in Schedule II hereto.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
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38
"Act" shall mean the Securities Act of 1933, as amended.
"Borrowing Effective Date" shall mean each date and time that
the Borrowing Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement relating thereto became or
shall become effective.
"Borrowing Preliminary Prospectus" shall mean any preliminary
prospectus with respect to the offering of the Borrowed Shares referred to in
paragraph 1A(c) above and any preliminary prospectus included in the Borrowing
Registration Statement at the Borrowing Effective Date that omits Rule 430A
Information.
"Borrowing Prospectus" shall mean the prospectus relating to
the Borrowed Shares that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required, shall mean
the form of final prospectus relating to the Borrowed Shares included in the
Borrowing Registration Statement at the Borrowing Effective Date.
"Borrowing Registration Statement" shall mean the registration
statement referred to in paragraph 1A(c) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective at any time or from time to time, shall also mean
such registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A Information
deemed to be included therein at the Borrowing Effective Date as provided by
Rule 430A.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City or London.
"Effective Date" shall mean each date and time that the
Offering Registration Statement, any post-effective amendment or
amendments thereto and any Rule 462(b) Registration Statement relating
thereto became or shall become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Material Adverse Effect" shall mean a material adverse effect
on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising in the ordinary course of business.
"Offering International Preliminary Prospectus" shall have the
meaning set forth under "Offering U.S. Preliminary Prospectus".
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"Offering Preliminary Prospectuses" shall have the meaning set
forth under "Offering U.S. Preliminary Prospectus".
"Offering Registration Statement" shall mean the registration
statement referred to in paragraph 1A(a) above, including the exhibits
thereto and the financial statements included therein, as amended at
the Execution Time (or, if not effective at the Execution Time, in the
form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean
such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective
Date as provided by Rule 430A.
"Offering U.S. Preliminary Prospectus" and the "Offering
International Preliminary Prospectus", respectively, shall mean any
preliminary prospectus with respect to the offering of the U.S.
Securities and the International Securities, as the case may be,
referred to in paragraph 1A(a) above and any preliminary prospectus
with respect to the offering of the U.S. Securities and the
International Securities, as the case may be, included in the Offering
Registration Statement at the Effective Date that omits Rule 430A
Information; and the Offering U.S. Preliminary Prospectus and the
Offering International Preliminary Prospectus are hereinafter
collectively called the "Offering Preliminary Prospectuses".
"Preliminary Prospectuses" shall mean, collectively, the
Offering Preliminary Prospectuses and the Borrowing Preliminary
Prospectus.
"Prospectuses" shall mean, collectively, the Offering
Prospectuses and the Borrowing Prospectus.
"Registration Statements" shall mean, collectively, the
Offering Registration Statement and the Borrowing Registration
Statement.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities or the Borrowed Shares, as the case may be, and the
offering thereof permitted to be omitted from the Offering Registration
Statement or the Borrowing Registration Statement, as the case may be,
when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the initial Offering Registration
Statement or the initial Borrowing Registration Statement, as the case
may be.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended.
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"United States or Canadian Person" shall mean any person who
is a national or resident of the United States or Canada, any
corporation, partnership or other entity created or organized in or
under the laws of the United States or Canada or of any political
subdivision thereof, or any estate or trust the income of which is
subject to United States or Canadian Federal income taxation,
regardless of its source (other than any non-United States or
non-Canadian branch of any United States or Canadian Person), and shall
include any United States or Canadian branch of a person other than a
United States or Canadian Person. "U.S." or "United States" shall mean
the United States of America (including the states thereof and the
District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Selling Stockholders and the several International
Underwriters.
Very truly yours,
Amkor Technology, Inc.
By: ____________________________
Name:
Title:
Xxxxx X. Xxx
____________________________
[Selling Stockholder]
By: ____________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxx Xxxxxx Inc.
BancAmerica Xxxxxxxxx Xxxxxxxx International Limited
Xxxxx International L.P.
By: Xxxxx Xxxxxx Inc.
By:___________________________
Name:
Title:
For themselves and the other several International Underwriters named in
Schedule I to the foregoing Agreement.
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SCHEDULE I
Number of Shares of Principal Amount of
International Underwritten International Underwritten
International Underwriter Shares to Be Purchased Notes to Be Purchased
------------------------- -------------------------- --------------------------
Xxxxx Xxxxxx Inc....................................................... $
BancAmerica Xxxxxxxxx Xxxxxxxx International Limited................... $
Xxxxx International L.P................................................ $
[Other International Underwriters]..................................... $
------------------------ -----------------------
Total............................................................. $
======================== =======================
1-1
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SCHEDULE II
Selling Stockholders Number of Shares
-------------------- ----------------
Address
[Address for notice]
X-0
00
XXXXXXXX XXX
List of Officers, Directors and Shareholders
(other than Selling Stockholders)
III-1
45
EXHIBIT A
[LETTERHEAD OF OFFICER, DIRECTOR, STOCKHOLDER OR SHAREHOLDER OF
AMKOR TECHNOLOGY, INC.]
Amkor Technology, Inc.
Public Offering of Common Stock and Convertible Notes
_______________, 1998
Xxxxx Xxxxxx Inc.
BancAmerica Xxxxxxxxx Xxxxxxxx
Xxxxx & Company
as U.S. Representatives of the several U.S. Underwriters
c/o Xxxxx Xxxxxx Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Xxxxxx Inc.
BancAmerica Xxxxxxxxx Xxxxxxxx International Limited
Xxxxx International L.P.
as International Representatives of the several International Underwriters
c/o Xxxxx Xxxxxx Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with (i)
the proposed U.S. Underwriting Agreement (the "U.S. Underwriting Agreement")
among Amkor Technology, Inc., a Delaware corporation (the "Company"), certain
selling stockholders of the Company and a group of U.S. Underwriters named
therein and (ii) the proposed International Underwriting Agreement (the
"International Underwriting Agreement") among the Company, certain selling
stockholders of the Company and a group of International Underwriters named
therein, relating to an underwritten public offering of Common Stock, $.001 par
value (the "Common Stock"), of the Company, and the Company's __% Convertible
Subordinated Notes due 2003.
In order to induce you and the other U.S. Underwriters and
International Underwriters to enter into the U.S. Underwriting Agreement and the
International Underwriting Agreement, the undersigned will not, without the
prior written consent of Xxxxx Xxxxxx Inc.,
A-1
46
offer, sell, contract to sell, pledge or otherwise dispose of, or file a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, with respect to, any shares of Common Stock of
the Company or any securities convertible into or exercisable or exchangeable
for shares of Common Stock, or publicly announce an intention to effect any such
transaction, for a period of 180 days after the date of the U.S. Underwriting
Agreement and the International Underwriting Agreement, other than (i) upon the
exercise of any option or warrant, or the conversion of a security, outstanding
on the date of the U.S. Underwriting Agreement and the International
Underwriting Agreement and referred to in the Offering Prospectuses (as defined
in the U.S. Underwriting Agreement and the International Underwriting Agreement)
and (ii) shares of Common Stock disposed of as bona fide gifts approved by Xxxxx
Xxxxxx Inc.
If for any reason the U.S. Underwriting Agreement and the
International Underwriting Agreement shall be terminated prior to the Closing
Date (as defined in the U.S. Underwriting Agreement and the International
Underwriting Agreement), the agreement set forth above shall likewise be
terminated.
Very truly yours,
_______________________________________
Signature
_______________________________________
Print Name
_______________________________________
Address
_______________________________________
A-2
