EXHIBIT 10.18
SHARE SALE AND PURCHASE AGREEMENT
This Share Sale and Purchase Agreement (this "Agreement") is made and entered
into as of the 10th day of July 2002, by and between:
Amkor Technology, Inc., a Delaware corporation with a place of business at 0000
Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000 U.S.A ("Seller"); and
Dongbu Corporation, a Korean corporation with its registered office located at
Dongbu Financial Center, 000-00 Xxxxxx-xxxx, Xxxxxxx-xx, Xxxxx, Xxxxx
("Purchaser").
RECITALS:
A. Seller currently owns 47,707,039 common shares (having par value of
KRW5,000 per share) in Anam Semiconductor, Inc., a Korean corporation with
its registered office located at 000-00, Xxxxxxx-xxxx, Xxxxxxx-xx, Xxxxx,
Xxxxx (the "Company").
B. Seller wishes to sell to Purchaser, and Purchaser wishes to purchase from
Seller, 20,000,000 shares in the Company, on the terms and conditions set
forth herein.
NOW, THEREFORE, it is hereby agreed as follows:
ARTICLE 1. DEFINITIONS & INTERPRETATION
1.1 The terms defined in this Article shall have the meanings ascribed to them
herein whenever they are used in this Agreement, unless otherwise clearly
indicated by the context.
"Action" means any claim, litigation, arbitration or inquiry, or judicial,
administrative, regulatory or other proceeding, brought by or before (or,
in the case of a claim, capable of being brought by or before) any court,
arbitral tribunal, government agency or other Government Authority or any
Person.
"Business Day" means a day other than Saturday, Sunday or a day on which
banking institutions are authorized or required by law or executive order
to remain closed in Seoul, Korea.
"Closing" means consummation of the sale and purchase of the Sale Shares
under the terms of this Agreement.
"Closing Date" means the date when the Closing occurs.
"Deposit" means the deposit to be paid by Purchaser as set forth in
Article 3.1.
1
"Encumbrances" means any lien, pledge, mortgage, security interest, charge
or other encumbrance.
"Government Approval" means any approval, consent or authorization from,
registration or filing with, notice to, or license, permit or
certification from, any Government Authority. Government Approvals with
respect to any action to be taken by any Party hereunder means such
Government Approvals as are required for the action under applicable Law.
"Government Authority" means any national, provincial, local or foreign
government, governmental, regulatory or administrative authority or
agency, or tribunal, court, or other judicial or arbitral body.
"Interim Payment" means the interim payment to be made by Purchaser as set
forth in Article 3.2.
"Interim Payment Date" means the date on which Purchaser makes the Interim
Payment.
"Korea" means the Republic of Korea.
"KRW" means the Korean Won, the lawful currency of Korea.
"Law" means any (i) national, provincial, state, or local statutes,
regulations, ordinances, rules, codes, judgments, awards, orders or
policies of Government Authorities, terms and conditions of Government
Approvals, and any other rules, standards or specifications having the
force or effect of law, whether Korean or foreign; and (ii) treaties,
conventions, protocols and other promulgations having transnational legal
effect.
"Party" means individually, Purchaser or Seller, and "Parties" means
collectively, Purchaser and Seller.
"Person" means any entity, corporation, company, partnership, association,
trust, organization, Government Authority or individual.
"Purchase Price" means the purchase price to be paid by Purchaser for the
Sale Shares as set forth in Article 2.
"Sale Shares" means all of the Shares to be sold hereunder by Seller, as
set forth in Article 2.1.
"Shareholders Agreement" means the shareholders agreement to be entered
into between Purchaser, Seller and such affiliates of Purchaser as may
become shareholders in the Company (Purchaser and such affiliates of
Purchaser, the "Dongbu Shareholders").
"Shares" means the shares of common stock of the Company, having par value
of KRW5,000 each, with full voting rights issued and outstanding as of the
date hereof.
2
"Texas Instruments" means Texas Instruments Incorporated, a Delaware
corporation with a place of business at 00000 Xxxxx Xxxxxxx Xxxxxxxxxx,
Xxxxxx, Xxxxx, 00000.
1.2 Except where the context otherwise requires, the masculine gender shall
include the feminine and neuter and the singular shall include the plural
and vice versa.
1.3 References in this Agreement to Articles, Sections and Exhibits shall
refer to the articles, sections and exhibits of this Agreement, and the
same shall form part of this Agreement and shall have the same force and
effect as if expressly set out in the body of this Agreement.
1.4 Headings of Articles in this Agreement are for convenience only and do not
substantively affect the terms of this Agreement.
ARTICLE 2. SALE AND PURCHASE OF SALE SHARES
2.1 Shares to be Purchased. Subject to the terms and conditions of this
Agreement, Seller shall sell and transfer to Purchaser, and Purchaser
shall purchase from Seller, 20,000,000 Shares (collectively, the "Sale
Shares"), free and clear of any Encumbrances.
2.2 Purchase Price. The purchase price for the Sale Shares shall be KRW5,700
per Share and KRW114,000,000,000 in aggregate (the "Purchase Price").
2.3 Payment Method. Purchaser shall pay to Seller the Purchase Price in
accordance with the schedule set forth in Article 3 below by remitting
such payments in immediately available funds to the bank account
designated in writing by Seller in advance.
ARTICLE 3. DEPOSIT, INTERIM PAYMENT AND CLOSING
3.1 Deposit. On or prior to the second Business Day after the date hereof,
Purchaser shall pay to Seller 10% of the Purchase Price (the "Deposit").
Against payment by Purchaser of the Deposit in full, Seller shall deliver,
or have delivered, to Purchaser a receipt, duly executed by Seller,
certifying the receipt by Seller of the Deposit.
3.2 Interim Payment. Subject to the fulfillment of the conditions precedent
specified in Article 7.1 on or prior to July 25, 2002, Purchaser shall pay
to Seller 40% of the Purchase Price (the "Interim Payment"); provided,
however, if any such condition precedent has not been satisfied or
otherwise waived as of such date, the Interim Payment shall be paid: (i)
on the third Business Day following the date on which the conditions set
forth in Articles 7.1 shall be satisfied or waived in accordance with this
Agreement or (ii) at such other time as the Parties may agree. Against
payment by Purchaser of the Interim Payment in full, Seller shall deliver,
or have delivered, to Purchaser a receipt, duly executed by Seller,
certifying the receipt by Seller of the Interim Payment.
3
3.3 Closing. Subject to the fulfillment of the conditions precedent specified
in Articles 7.2 and 8 hereof, the sale and purchase of the Sale Shares
shall be consummated at 10:00 am local time on or prior to August 28,
2002, at the offices of Xxx, Xxx & Xxx located at 000-00, Xxxxxx-Xxxx,
Xxxxxxx-Xx, Xxxxx, Xxxxx; provided, however, that if any such condition
precedent has not been satisfied or otherwise waived as of that date, the
Closing shall take place: (i) on the third Business Day following the date
on which the conditions set forth in Articles 7.2 and 8 shall be satisfied
or waived in accordance with this Agreement or (ii) at such other time as
the Parties may agree.
3.4 Closing Deliveries of Seller. At the Closing, Seller shall deliver, or
have delivered, to Purchaser the share certificates representing the Sale
Shares together with all documents necessary to enter Purchaser as new
shareholder of the Sale Shares on the Register of Shareholders.
3.5 Closing Deliveries of Purchaser. At the Closing, Purchaser shall deliver,
or have delivered, to Seller the payment of the remaining unpaid portion
of the Purchase Price.
3.6 Extension of Interim Payment Date and Closing Date. The Interim Payment
Date of July 25, 2002 set forth in Article 3.2 and the Closing Date of
August 28, 2002 set forth in Article 3.3 may be extended up to 10 Business
Days by written notice by Purchaser if Purchaser is unable to make the
payments due to be made on such dates.
ARTICLE 4. SELLER'S REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of Seller. Seller represents and warrants
to Purchaser that the statements contained in this Article 4.1 are correct
and complete in all material respects as of the date of this Agreement and
will be correct and complete in all material respects as of the Interim
Payment Date and as of the Closing Date (as though made then), except as
otherwise disclosed in writing at or prior to the signing of this
Agreement.
(a) Title to Shares. It is the legal and beneficial owner of the Sale
Shares, and such Sale Shares are validly issued, fully paid and
non-assessable and as of the Closing Date will be free and clear of
all Encumbrances.
(b) Organization. It is a corporation duly organized and existing under
the laws of the jurisdiction of its organization.
(c) Corporate Authorization. It has all requisite corporate power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. It has taken all requisite corporate action
to execute, deliver and perform this Agreement, and no other
corporate proceedings on its part are required in connection with
its execution, delivery and performance of this Agreement.
(d) Binding Effect. This Agreement has been duly executed and delivered
by Seller. Assuming the due authorization, execution and delivery by
Purchaser, this Agreement constitutes Seller's legally binding
obligation, enforceable against it in accordance with its terms,
except as enforcement may be limited by
4
bankruptcy, insolvency, reorganization, moratorium or similar Laws
affecting creditors' rights generally.
(e) Non-Contravention. Its execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated
hereby, do not and will not (i) violate any provision of its
Articles of Incorporation or other organizational documents or (ii)
violate or result in a breach of or constitute a default under any
Law to which it is subject.
(f) Governmental Consents and Approvals. Its execution and delivery of
this Agreement, and its performance of its obligations hereunder,
including the transfer of the Sale Shares and the Company's
registration of Purchaser on its Register of Shareholders as the
holder of the Sale Shares, do not and will not require any material
filing with, or clearance, consent or approval of, any Governmental
Authority.
(g) Other Consent and Approvals. No consent or approval of, or notice
to, any other person, other than consent from the lien-holders over
the Sale Shares, is necessary to the consummation of the sale and
purchase of the Sale Shares contemplated by this Agreement,
including, without limitation, consents or approvals from parties to
loans, contracts, leases or other agreements to which Seller is a
party.
4.2 Disclaimer of Other Representations and Warranties. Except as expressly
set forth in Article 4.1 Seller makes no representation or warranty,
express or implied, at law or in equity, with respect to itself or the
Company, and such other representations or warranties are hereby expressly
disclaimed.
4.3 Survival of Representations and Warranties. All of the representations and
warranties made by Seller herein shall survive until the first anniversary
of the Closing Date, except for the representations and warranties set
forth in Article 4.1(a) (Title to Shares) and Article 4.1(c) (Corporate
Authorization), which shall survive indefinitely.
ARTICLE 5. PURCHASER'S REPRESENTATIONS AND WARRANTIES
5.1 Purchaser represents and warrants to Seller that the statements contained
in this Article 5 are correct and complete in all material respects as of
the date of this Agreement and will be correct and complete in all
material respects as of the Closing Date (as though made then), except as
otherwise disclosed in writing at or prior to the signing of this
Agreement.
(a) Organization. It is a corporation duly organized and existing under
the Laws of the jurisdiction of its organization.
(b) Corporate Authorization. It has all requisite corporate power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. It has taken all requisite corporate action
to execute, deliver and perform this Agreement, and no other
corporate proceedings on its part are required in
5
connection with its execution, delivery and performance of this
Agreement.
(c) Binding Effect. This Agreement has been duly executed and delivered
by Purchaser. Assuming the due authorization, execution and delivery
of this Agreement by Seller, this Agreement constitutes Purchaser's
legally binding obligation, enforceable against it in accordance
with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar Laws affecting
creditors' rights generally.
(d) Non-Contravention. Its execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated
hereby, do not and will not (i) violate any provision of its
Articles of Incorporation or other organizational documents or (ii)
violate or result in a breach of or constitute a default under any
Law to which it is subject.
(e) Governmental Consents and Approvals. Its execution and delivery of
this Agreement, and its performance of its obligations hereunder, do
not and will not require any material filing with, or clearance,
consent or approval of, any Governmental Authority.
(f) Other Consent and Approvals. No consent or approval of, or notice
to, any other person is necessary to the consummation of the sale
and purchase of the Sale Shares contemplated by this Agreement,
including, without limitation, consents or approvals from parties to
loans, contracts, leases or other agreements to which Purchaser is a
party.
(g) Financial Capability. On the Closing Date, it will have sufficient
funds to pay the Purchase Price for the Shares on the terms and
conditions contemplated by this Agreement.
(h) Investigation by Purchaser. Purchaser and its representatives and
agents have had and exercised, prior to the date hereof, the right
to enter upon the Company's facilities and to make all inspections
and investigations of the Company and its business and assets.
Purchaser is purchasing the Sale Shares based solely on the results
of its inspections and investigations, and not on any representation
or warranty of Seller not expressly set forth in this Agreement. In
light of these inspections and investigations and the
representations and warranties made to Purchaser by Seller in
Article 4 hereof, Purchaser is relinquishing any right to any claim
based on any representations and warranties other than those
specifically included in Article 4 hereof. Any claims Purchaser may
have for breach of representation or warranty shall be based solely
on the representations and warranties of Seller set forth in Article
4 hereof. Purchaser represents that to its knowledge, Seller is not
in breach of any of the representations and warranties set forth in
Article 4 hereof.
5.2 Survival of Representations and Warranties. All of the representations and
warranties made by Purchaser herein shall survive until the first
anniversary of the Closing Date, except for the representations and
warranties set forth in Article 5.1(b) (Corporate Authorization), which
shall survive indefinitely.
6
ARTICLE 6. COVENANTS
6.1 The Parties shall negotiate in good faith and make their best efforts to
enter into the Shareholders Agreement as soon as practicable after the
signing hereof, but in no event later than 15 days from the date hereof.
6.2 Between the date hereof and the Closing Date, each Party shall promptly
notify the other Party in writing if it becomes aware of (i) any fact or
condition that causes or constitutes a breach of any of its
representations and warranties made as of the date of this Agreement or
(ii) the occurrence after the date of this Agreement of any fact or
condition that would, or would be reasonably likely to, cause or
constitute a breach of any such representation or warranty had that
representation or warranty been made as of the time of the occurrence of,
or its discovery of, such fact or condition.
ARTICLE 7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF PURCHASER
7.1 Conditions Precedent to Interim Payment. The obligation of Purchaser to
pay the Interim Payment hereunder is subject, at the option of Purchaser,
to the fulfillment prior to or on the Interim Payment Date of each of the
following conditions, any one or more of which may be waived by Purchaser
in writing:
7.1.1 Covenants. Seller shall have performed and complied with, in all
material respects, all covenants, agreements and conditions required
by this Agreement to be performed or complied with prior to or on
the Interim Payment Date.
7.1.2 Representations and Warranties. All of the representations and
warranties made by Seller in this Agreement shall be true, accurate
and correct in all material respects at and as of the Interim
Payment Date as though such representations and warranties were made
at and as of the Interim Payment Date.
7.1.3 Shareholders Agreement. The Shareholders Agreement shall have been
executed by the parties thereto in form and substance mutually
agreeable to the parties thereto and is in effect.
7.2 Conditions Precedent to Closing. The obligations of Purchaser to complete
the Closing hereunder are subject, at the option of Purchaser, to the
fulfillment prior to or at the Closing of each of the following
conditions, any one or more of which may be waived by Purchaser in
writing:
7.2.1 Covenants. Seller shall have performed and complied with, in all
material respects, all covenants, agreements and conditions required
by this Agreement to be performed or complied with prior to or at
the time of Closing.
7.1.2 Representations and Warranties. All of the representations and
warranties made by Seller in this Agreement shall be true, accurate
and correct in all material
7
respects at and as of the Closing Date as though such
representations and warranties were made at and as of the Closing
Date.
7.2.3 Letter of Intent. Purchaser shall have received a copy of letter of
intent executed by Texas Instruments to the Company, in form and
substance reasonably satisfactory to Purchaser, indicating Texas
Instruments' willingness to enter into a technology transfer
agreement and a manufacturing purchase agreement with the Company
with respect to future semiconductor technology to be acquired by
the Company.
7.2.4 Shareholders Agreement. The Shareholders Agreement remains in
effect.
ARTICLE 8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER
The obligations of Seller to complete the Closing hereunder are subject, at the
option of Seller, to the fulfillment prior to or at the Closing of each of the
following conditions, any one or more of which may be waived by Seller:
8.1 Covenants. Purchaser shall have performed and complied with, in all
material respects, all covenants, agreements and conditions required by
this Agreement to be performed or complied with by it, prior to or at the
time of Closing.
8.2 Representations and Warranties. All of the representations and warranties
made by Purchaser in this Agreement shall be true, accurate and correct in
all material respects at and as of the Closing Date as though such
representations and warranties were made at and as of the Closing Date.
8.3 Shareholders Agreement. The Shareholders Agreement shall have been
executed by the parties thereto in form and substance mutually agreeable
to the parties thereto and is in effect.
ARTICLE 9. INDEMNIFICATION
9.1 Indemnification of the Parties.
(a) Seller shall indemnify and hold Purchaser harmless from and against
any and all losses, claims, damages, liabilities, expenses
(including reasonable legal fees and expenses) and costs
(collectively, "Losses") incurred by Purchaser, arising from any
inaccurate or misleading representation or breach of warranty,
covenant or agreement made by it in this Agreement.
(b) Purchaser shall indemnify and hold Seller harmless from and against
any and all Losses incurred by Seller, arising from any inaccurate
or misleading representation or breach of warranty, covenant or
agreement made by it in this Agreement.
9.2 Notice of Claims. If any Party to be indemnified under Article 9.1 (the
"Indemnified
8
Party") has suffered or incurred any Losses, the Indemnified Party shall
so notify the other party (the "Indemnifying Party") promptly in writing
describing such Losses, the amount or estimated amount thereof, if known
or reasonably capable of estimation, and the method of computation of such
Losses, all with reasonable particularity and containing a reference to
the provisions of this Agreement in respect of which such Losses shall
have occurred. If any Action is instituted by or against a third party
with respect to which the Indemnified Party intends to claim any liability
or expense as Losses under this Article 9, the Indemnified Party shall
promptly notify the Indemnifying Party of such Action and tender the
Indemnifying Party the defense of such Action. A failure to give notice
and to tender the defense of the Action in a timely manner pursuant to
this Article 9.2 shall not limit the obligation of the Indemnifying Party
under this Article 9, (i) except to the extent such Indemnifying Party is
prejudiced thereby, and for this purpose, any failure to give notice and
to tender the defense that results in the Indemnifying Party not
controlling or participating in such Action shall be deemed to prejudice
the Indemnifying Party, (ii) except to the extent expenses are incurred
during the period in which notice was not provided, and (iii) except as
provided by Article 9.5 below.
9.3 Third Party Claims.
(a) The Indemnifying Party shall have the right, but not the obligation,
to conduct and control, through counsel of its choosing, any third
party claim, action or suit ("Third Party Claim"), and the
Indemnifying Party may compromise or settle the same, provided that
the Indemnifying Party shall give the Indemnified Party advance
notice of any proposed compromise or settlement. The Indemnifying
Party shall permit the Indemnified Party to participate in, but not
control, the defense of any such action or suit through counsel
chosen by the Indemnified Party, provided that the fees and expenses
of such counsel shall be borne by the Indemnified Party. If the
Indemnifying Party elects not to control or conduct the defense or
prosecution of a Third Party Claim, (i) the Indemnifying Party shall
have the right to participate in, but not conduct or control, the
defense or prosecution of any Third Party Claim and, at its own
expense, to employ counsel of its own choosing for such purpose, and
(ii) the Indemnified Party may compromise or settle a Third Party
Claim only upon obtaining the Indemnifying Party's prior written
consent which shall not be unreasonably withheld or delayed.
(b) The Parties shall cooperate in the defense or prosecution of any
Third Party Claim, with such cooperation to include (i) the
retention and the provision to the Indemnifying Party of records and
information that are reasonably relevant to such Third Party Claim
and (ii) the making available of employees on a mutually convenient
basis for proving additional information and explanation of any
material provided hereunder.
9.4 Expiration. Notwithstanding anything in this Agreement to the contrary, if
the Closing shall have occurred, all covenants, agreements, warranties and
representations made herein or in any certificate delivered pursuant
hereto shall survive the Closing, but, subject to Articles 4.3 and 5.2,
all representations and warranties made herein, and all indemnification
obligations under Article 9.1 with respect to any such representation or
9
warranty, shall terminate and expire on, and no action or proceeding
seeking damages or other relief for breach of any thereof or for any
misrepresentation or inaccuracy with respect thereto shall be commenced
after, the first anniversary of the Closing Date with respect to all
claims of any party, and of any Indemnified Persons, which shall not have
been previously asserted, with reasonable specificity, by written notice
given under Article 9.2 and received by the Indemnifying Party prior to
such date.
9.5 Certain Limitations. Seller shall not have any liability under Article 9.1
for Losses unless the aggregate of all such Losses for which it would, but
for this provision, be liable exceeds on a cumulative basis 1% of the
aggregate amount the Purchase Price.
9.6 Other Limitations. No claim for breach of representation or warranty shall
be made by Purchaser under Article 9.1 if (a) such claim is based on a
fact or an event occurring prior to Closing (whether or not also occurring
prior to the date of this Agreement) and (b) such fact or event was
disclosed by Seller prior to Closing in accordance with Article 6.2, and
Purchaser elected to proceed with the Closing notwithstanding such breach.
9.7 No Consequential Damages. Notwithstanding anything to the contrary
contained herein, no Party shall be liable to or otherwise responsible to
the other Party for, and Losses shall exclude, speculative, unforeseeable,
consequential, incidental or indirect damages that arise out of or relate
to this Agreement or the performance or breach thereof.
ARTICLE 10. TERMINATION
10.1 Termination. The obligation of the Parties to consummate the purchase and
sale contemplated hereby may be terminated and abandoned at any time on or
before the Closing Date, without cost, expense or liability to a Party by:
(a) The mutual agreement of Purchaser and Seller;
(b) Seller, if there has been a material breach by Purchaser of any of
its representations, warranties or covenants set forth in this
Agreement and such breach has not been cured within 5 days after
notice thereof;
(c) Purchaser, if there has been a material breach by Seller of any of
its representations, warranties or covenants set forth in this
Agreement and such breach has not been cured within 5 days after
notice thereof;
(d) Purchaser or Seller, if the Shareholders Agreement has not been
executed within 15 days from the date hereof for whatever reason; or
(e) Purchaser or Seller, if the Closing has not occurred by September
13, 2002, provided that the Party terminating the Agreement is not
at fault in causing the delay in Closing.
10.2 Effect of Termination. In the event of termination of this Agreement under
Article 10.1, this Agreement shall immediately, as from the date of such
termination by the Party entitled to do so, become void, except for
Articles 9, 10 and 12. None of the
10
Parties shall have any liability in respect of a termination of this
Agreement, except as follows:
(a) In the event of a termination of this Agreement pursuant of Article
10.1(a), Article 10.1(d) or Article 10.1(e), Seller shall without
delay return to Purchaser the Deposit and Interim Payment paid by
Purchaser.
(b) In the event of a termination of this Agreement pursuant of Article
10.1(b), Seller shall without delay return to Purchaser the Interim
Payment paid by Purchaser and shall retain the Deposit as liquidated
damages.
(c) In the event of a termination of this Agreement pursuant of Article
10.1(c), Seller shall without delay return to Purchaser the Deposit
and Interim Payment paid by Purchaser and shall pay to Purchaser an
additional amount equivalent to the Deposit as liquidated damages.
ARTICLE 11. NOTICE
11.1 Any notices given hereunder shall be in writing and shall be served by
hand at, or by being sent by facsimile transmission, commercial courier or
prepaid post to, the following addresses and numbers:
To Seller: Amkor Technology, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
U.S.A
Fax:
Attn: Xxxxx Xxxxx (General Counsel)
To Purchaser: Dongbu Corporation
Dongbu Financial Center
000-00 Xxxxxx-xxxx, Xxxxxxx-xx
Xxxxx, Xxxxx
Fax:
Attn: Woo Sup Baek (Chief of Legal Department)
11.2 Any such notice shall be deemed to be served at the time of delivery (if
delivered by hand, by commercial courier or by post) or at the time of
transmission (if served by facsimile). Without prejudice to the
effectiveness thereof, a notice served by facsimile shall be confirmed
promptly in writing delivered by hand or sent by commercial courier or
prepaid post.
11.3 Any Party may, by 7 days' written notice served to the aforesaid addresses
of the other Party, change the address or facsimile number for service
referred to above.
11
ARTICLE 12. MISCELLANEOUS
12.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
principles of conflicts of law thereof.
12.2 Arbitration. Any dispute or claim arising out of or relating to this
Agreement shall be resolved exclusively and finally by arbitration. The
arbitration shall be conducted pursuant to the Rules of Arbitration of the
International Chamber of Commerce. The arbitral tribunal shall consist of
three arbitrators. One arbitrator shall be appointed by Purchaser, one
arbitrator shall be appointed by Seller and the third arbitrator shall be
appointed by mutual consent of the two arbitrators so appointed. The
arbitration shall be conducted in Philadelphia, Pennsylvania, U.S.A. if
Seller is the claimant or in Seoul, Korea if Purchaser is the claimant.
The language used in the arbitration shall be the English language. Any
decision or award of the arbitral tribunal shall be final and binding upon
the Parties. The Parties waive to the extent permitted by law any rights
to appeal or to review of such award by any court or tribunal. The Parties
agree that the arbitral award may be enforced against the parties to the
arbitration proceeding or their assets wherever they may be found and that
a judgment upon the arbitral award may be entered in any court having
jurisdiction thereof.
12.3 Confidentiality of Information.
(a) Each Party agrees to keep secret and confidential all information
obtained pursuant to this Agreement from the other Party or the
Company. The Parties agree to take reasonable precautions, in a
manner reasonably acceptable to the Party furnishing the
information, in order to keep secret and confidential such
information and to restrict its use outside and beyond the scope of
this Agreement without the prior written consent of the party
furnishing such information; provided, however, that any Party may
disclose such information to its advisors or to Government
Authorities as is required to bring about the purposes intended by
this Agreement; and provided, further, that the above restrictions
shall not apply to information:
(i) which was or becomes generally available to the public;
(ii) which was or becomes known to the recipient without breach of
this or any obligation of confidentiality;
(iii) which is provided to Texas Instruments for the purpose of
negotiating, entering into or amending contracts or other
commercial arrangements; or
(iv) the disclosure of which is required by Law or by a Government
Authority.
The term "information" shall mean any information concerning
proprietary, confidential, trade secrets and other non-public
information and data, including information concerning the property,
operations and business of a Party or the Company.
(b) Each Party shall take reasonable steps to ensure that its directors,
officers,
12
employees, agent and advisers will comply in all respects with this
Article 12.3.
(c) In the event of termination of this Agreement pursuant to Article
10.1, each Party shall return to the other Party all information
(and all reproductions, thereof) received from such Party.
(d) In the event Purchaser breaches its obligations under this Article
12.3 after the termination of this Agreement, Purchaser shall
indemnify Seller and the Company against any loss or damage suffered
by them as a result of such breach (including any misuse of the
information provided to Purchaser hereunder) by Purchaser or any
Person to whom such information is provided by Purchaser. Without
limiting Seller's or the Company's rights to claim for damages
against Purchaser as aforesaid, the Company and Seller shall have
the right to seek injunctive relief or any other appropriate remedy.
(e) For a period of 3 years from the date of termination of this
Agreement, Purchaser shall not employ or solicit the employment of
any individual who is as of the date of this Agreement an officer or
employee of the Company and shall not solicit any customers, clients
or accounts of the Company by using the information provided to
Purchaser.
12.4 Entire Agreement. This Agreement shall, as of the date of execution
hereof, supersede all previous representations, understandings or
agreements, oral or written, among the Parties with respect to the subject
matter hereof.
12.5 Waivers. No waiver by any Party of any breach or failure to comply with
any provision of this Agreement shall be construed as, or constitute, a
continuing waiver of such provision or a waiver of any other breach of, or
failure to comply with, any other provision of this Agreement.
12.6 Successors and Assigns. This Agreement and each and every covenant, term
and condition hereof shall be binding upon and inure to the benefit of the
Parties and their respective successors and assigns. No Party may assign
any of its rights or delegate any of its duties under this Agreement
without obtaining the prior consent of the other Parties. Purchaser may,
however, assign all or a portion of its rights and obligations hereunder
to its affiliate(s) without the prior consent of Seller, provided that
Purchaser shall guarantee the performance of the obligations hereunder of
such affiliate(s).
12.7 Amendments. This Agreement may be amended or modified only by an
instrument in writing duly executed by the Parties.
12.8 Severability of Provisions. If any term or provision of this Agreement is
for any reason found invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect the
validity of any remaining portion, which shall remain in full force and
effect as if the invalid portion was never a part of this Agreement when
it was executed.
12.9 Language/Counterparts. This Agreement is written in the English language
and may
13
be executed in counterparts, each of which shall be deemed an original
when executed and delivered, but all counterparts together shall
constitute the same document. The English language text of this Agreement
shall prevail over any translation thereof.
12.10 Release of Information. Seller shall make its reasonable best efforts to
cause the Company to provide Purchaser with such information on the
Company as reasonably requested by Purchaser until the execution of the
Shareholders Agreement.
IN WITNESS WHEREOF, the Parties executed this Agreement as of the date first
above written.
Amkor Technology, Inc. Dongbu Corporation
By: /s/ Xxxx Xxxxxx By: /s/ HO XX Xxxx
________________________ ________________________
Name: Xxxx Xxxxxx Name: HO XX Xxxx
Title: Chief Operating Officer Title: Representative Director
and President
14
EXECUTION COPY
SHARE SALE AND PURCHASE AGREEMENT
dated as of July , 2002
between
AMKOR TECHNOLOGY, INC.
as Seller
and
DONGBU CORPORATION
as Purchaser
Xxx, Xxx & Xxx
Seoul, Korea
