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EXHIBIT 10.2
SENIOR NOTES
REGISTRATION RIGHTS AGREEMENT
DATED AS OF MAY 13, 1999
BY AND AMONG
AMKOR TECHNOLOGY, INC.
AND
XX XXXXX SECURITIES CORPORATION
XXXXXXX XXXXX BARNEY INC.
BT ALEX. XXXXX INCORPORATED
NATIONSBANC XXXXXXXXXX SECURITIES LLC
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
PRUDENTIAL SECURITIES INCORPORATED
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This Registration Rights Agreement (this "Agreement") is made and
entered into as of May 13, 1999, by and among Amkor Technology, Inc., a Delaware
corporation (the "Company"), and the several initial purchasers named in
Schedule A hereto (the "Initial Purchasers," or, each, an "Initial Purchaser"),
each of whom has agreed to purchase the Company's 9 1/4% Series A Senior Notes
due 2006 (the "Series A Senior Notes") pursuant to the Purchase Agreement (as
defined below).
This Agreement is made pursuant to the Purchase Agreement, dated May 6,
1999, (the "Purchase Agreement"), by and among the Company and the Initial
Purchasers. In order to induce the Initial Purchasers to purchase the Series A
Senior Notes, the Company has agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth in Section 3 of
the Purchase Agreement. Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Indenture dated as of May 13,
1999, between the Company and State Street Bank and Trust Company, as Trustee
(the "Senior Notes Indenture").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
AFFILIATED MARKET MAKER: A Broker-Dealer who is deemed to be an
Affiliate of the Company.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
CERTIFICATED SECURITIES: Definitive Notes, as defined in the Senior
Notes Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for purposes
of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the Series B
Senior Notes to be issued in the Exchange Offer, (b) the maintenance of such
Exchange Offer Registration Statement continuously effective and the keeping of
the Exchange Offer open for a period not less than the period required pursuant
to Section 3(b) hereof and (c) the delivery by the Company to the Registrar
under Section 2.03 of the Senior Notes Indenture of Series B Senior Notes in the
same aggregate principal amount as the aggregate principal amount of Series A
Senior Notes tendered by Holders thereof pursuant to the Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
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EXCHANGE OFFER: The exchange and issuance by the Company of a principal
amount of Series B Senior Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal amount
of Series A Senior Notes that are tendered by such Holders in connection with
such exchange and issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchasers propose
to sell the Series A Senior Notes to certain "qualified institutional buyers,"
as such term is defined in Rule 144A under the Act.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company filed
with the Commission pursuant to the Act relating to (a) an offering of Series B
Senior Notes pursuant to an Exchange Offer or (b) the registration for resale of
Transfer Restricted Securities pursuant to the Shelf Registration Statement, in
each case, (i) that is filed pursuant to the provisions of this Agreement and
(ii) including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
REGULATION S: Regulation S promulgated under the Act.
RULE 144: Rule 144 promulgated under the Act.
SERIES B SENIOR NOTES: The Company's 9 1/4% Series B Senior Notes due
2006 to be issued pursuant to the Senior Notes Indenture: (i) in the Exchange
Offer or (ii) as contemplated by Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
in effect on the date of the Senior Notes Indenture.
TRANSFER RESTRICTED SECURITIES: Each (A) Series A Senior Note, until the
earliest to occur of (i) the date on which such Series A Senior Note is
exchanged in the Exchange Offer for a Series B Senior Note which is entitled to
be resold to the public by the Holder thereof without complying with the
prospectus delivery requirements of the Act, (ii) the date on which such Series
A Senior Note has been
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disposed of in accordance with a Shelf Registration Statement (and the
purchasers thereof have been issued Series B Senior Notes), or (iii) the date on
which such Series A Senior Note may be sold to the public pursuant to Rule 144
under the Act and each (B) Series B Senior Note held by a Broker Dealer until
the date on which such Series B Note is disposed of by a Broker-Dealer pursuant
to the "Plan of Distribution" contemplated by the Exchange Offer Registration
Statement (including the delivery of the Prospectus contained therein).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Company shall (i) use commercially reasonable efforts to
cause the Exchange Offer Registration Statement to be filed with the Commission
as soon as practicable after the Closing Date, but in no event later than 120
days after the Closing Date (such 120th day being the "Filing Deadline"), (ii)
use commercially reasonable efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but in no event
later than 210 days after the Closing Date (such 210th day being the
"Effectiveness Deadline"), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings, if any, in
connection with the registration and qualification of the Series B Senior Notes
to be made under the Blue Sky laws of such jurisdictions as are necessary to
permit Consummation of the Exchange Offer, and (iv) upon the effectiveness of
such Exchange Offer Registration Statement, commence and Consummate the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting (x)
registration of the Series B Senior Notes to be offered in exchange for the
Series A Senior Notes that are Transfer Restricted Securities and (y) resales of
Series B Senior Notes by Broker-Dealers that tendered into the Exchange Offer
Series A Senior Notes that such Broker-Dealer acquired for its own account as a
result of market making activities or other trading activities (other than
Series A Senior Notes acquired directly from the Company or any of its
Affiliates) as contemplated by Section 3(c) below.
(b) The Company shall use commercially reasonable efforts to cause
the Exchange Offer Registration Statement to be effective continuously, and
shall keep the Exchange Offer open for a period of not less than the minimum
period required under applicable federal and state securities laws to Consummate
the Exchange Offer; provided, however, that in no event shall such period be
less than 30 Business Days. The Company shall cause the Exchange Offer to comply
with all applicable federal and state securities laws. No securities other than
the Series B Senior Notes and the Series B Senior Subordinated Notes shall be
included in the Exchange Offer Registration Statement. The Company shall use
commercially reasonable efforts to cause the Exchange Offer to be Consummated on
the earliest practicable date after the Exchange Offer Registration Statement
has become effective, but in no event later than 30 Business Days thereafter
(such 30th day being the "Consummation Deadline").
(c) The Company shall include a "Plan of Distribution" section in
the Prospectus contained in the Exchange Offer Registration Statement and
indicate therein that any Broker-Dealer who holds Transfer Restricted Securities
that were acquired for the account of such Broker-Dealer as a result of
market-making activities or other trading activities (other than Series A Senior
Notes acquired directly from the Company or any Affiliate of the Company), may
exchange such Transfer Restricted Securities
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pursuant to the Exchange Offer. Such "Plan of Distribution" section shall also
contain all other information with respect to such sales by such Broker-Dealers
that the Commission may require in order to permit such sales pursuant thereto,
but such "Plan of Distribution" shall not name any such Broker-Dealer or
disclose the amount of Transfer Restricted Securities held by any such
Broker-Dealer, except to the extent required by the Commission.
Because such Broker-Dealer may be deemed to be an "underwriter" within
the meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Series B
Senior Notes received by such Broker-Dealer in the Exchange Offer, the Company
shall permit the use of the Prospectus contained in the Exchange Offer
Registration Statement by such Broker-Dealer to satisfy such prospectus delivery
requirement. To the extent necessary to ensure that the prospectus contained in
the Exchange Offer Registration Statement is available for resales of Series B
Senior Notes by Broker-Dealers, the Company agrees to use commercially
reasonable efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented, amended and current as required by and
subject to the provisions of Section 6(a) and (c) hereof and in conformity with
the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of
180 days from the Consummation Deadline or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Registration Statement
have been sold pursuant thereto. The Company shall provide sufficient copies of
the latest version of such Prospectus to such Broker-Dealers, promptly upon
request, and in no event later than one day after such request, at any time
during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted
by applicable law or Commission policy after the Company has complied with the
procedures set forth in Section 6(a)(i) below or (ii) any Holder of Series A
Senior Notes which are Transfer Restricted Securities shall notify the Company
within 20 Business Days following the Consummation Deadline that (A) such Holder
is prohibited by law or Commission policy from participating in the Exchange
Offer, (B) such Holder may not resell the Series B Senior Notes acquired by it
in the Exchange Offer to the public without delivering a prospectus, and the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C) such Holder is
a Broker-Dealer and holds Series A Senior Notes acquired directly from the
Company or any of the Company's affiliates, then the Company shall:
(x) use commercially reasonable efforts to cause to be
filed, on or prior to the later of (1) the Filing Deadline and (2) 60
days after the date on which the Company receives the notice specified
in clause (a)(ii) above, a shelf registration statement pursuant to Rule
415 under the Act (which may be an amendment to the Exchange Offer
Registration Statement (the "Shelf Registration Statement")), relating
to all Transfer Restricted Securities, and
(y) shall use commercially reasonable efforts to cause such
Shelf Registration Statement to become effective on or prior to the
later of (i) 120 days after the Filing Deadline for the Shelf
Registration Statement or (ii) 120 days after the date on which the
Company receives notice under (x)(ii) above (such day the "Effectiveness
Deadline").
If, after the Company has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) above, the Company is required
to file and make effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law (i.e., clause
(a)(i) above), then the filing of the Exchange Offer Registration Statement
shall be deemed to
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satisfy the requirements of clause (x) above; provided that, in such
event, the Company shall remain obligated to meet the Effectiveness
Deadline set forth in clause (y) above.
To the extent necessary to ensure that the Shelf Registration Statement
is available for resales of Transfer Restricted Securities by the Holders
thereof entitled to the benefit of this Section 4(a) and the other securities
required to be registered therein pursuant to Section 6(b)(ii) hereof, the
Company shall use commercially reasonable efforts to keep any Shelf Registration
Statement required by this Section 4(a) continuously effective, supplemented,
amended and current as required by and subject to the provisions of Sections
6(b) and (c) hereof and in conformity with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission as announced
from time to time, for a period of at least two years following the Closing
Date, or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Shelf Registration Statement have been sold pursuant
thereto.
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 10 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
(c) Prohibitions Against Sales. Notwithstanding anything to the
contrary in this Section 4 or in Section 3(c), but subject to compliance with
Section 5, the Company may, by delivering written notice to the Holders,
prohibit offers and sales of Transfer Restricted Securities pursuant to the
Shelf Registration Statement at any time if (A)(i) the Company is in possession
of material non-public information relating to the Company, (ii) the Company
determines (based on advice of counsel) that such prohibition is necessary in
order to avoid a requirement to disclose such material non-public information to
the public and (iii) the Company determines in good faith that public disclosure
of such material non-public information would not be in the best interests of
the Company and its stockholders or (B)(i) the Company has made a public
announcement relating to an acquisition or business combination transaction
including the Company and/or one or more of its subsidiaries that is material to
the Company and its subsidiaries taken as a whole and (ii) the Company
determines in good faith that (x) offers and sales of Transfer Restricted
Securities pursuant to the Shelf Registration Statement prior to the
consummation of such transaction (or such earlier date as the Company shall
determine) is not in the best interests of the Company and its stockholders or
(y) it would be impracticable at the time to obtain any financial statements
relating to such acquisition or business combination transaction that would be
required to be set forth in the Shelf Registration; provided, however, that upon
(i) the public disclosure by the Company of the material non-public information
described in clause (A) of this paragraph or (ii) the consummation, abandonment
or termination of, or the availability of the required financial statements with
respect to, a transaction described in clause (B) of this paragraph, the
suspension of the use of the Shelf Registration Statement pursuant to this
Section 4(c) shall cease and the Company shall promptly comply with Section
6(c)(ii) hereof and notify Holders that dispositions of Transfer Restricted
Securities may be resumed.
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SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing Deadline, (ii)
any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated on or prior to the Consummation Deadline
or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded reasonably promptly by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself declared effective reasonably promptly (including as a result
of a prohibition against sales of Transfer Restricted Securities pursuant to
Section 4(c) hereof at any time for a period of time which shall exceed 30 days
in the aggregate during any 3-month period or 90 days in the aggregate during
any 365-day period) (each such event referred to in clauses (i) through (iv), a
"Registration Default"), then the Company hereby jointly and severally agrees to
pay to each Holder of Transfer Restricted Securities affected thereby liquidated
damages in an amount equal to 0.25% per annum in principal amount of Transfer
Restricted Securities held by such Holder for each week or portion thereof that
the Registration Default continues for the first 90-day period immediately
following the occurrence of such Registration Default. The amount of the
liquidated damages shall increase by 0.25% per annum in principal amount of
Transfer Restricted Securities with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum amount of
liquidated damages of 1.00% per annum in principal amount of Transfer Restricted
Securities; provided that the Company shall in no event be required to pay
liquidated damages for more than one Registration Default at any given time. If,
after the cure of all Registration Defaults then in effect, there is a
subsequent Registration Default, the rate of Additional Interest for such
subsequent Registration Default shall initially be 0.25%, regardless of the
Additional Interest rate in effect with respect to any prior Registration
Default at the time of the cure of such Registration Default. Notwithstanding
anything to the contrary set forth herein, (1) upon filing of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (i) above, (2) upon the effectiveness of the Exchange
Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (ii) above, (3) upon Consummation of the Exchange
Offer, in the case of (iii) above, or (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional Registration Statement
that causes the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement) to again be declared effective or made usable
in the case of (iv) above, the liquidated damages payable with respect to the
Transfer Restricted Securities as a result of such clause (i), (ii), (iii) or
(iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Senior Notes
Indenture, on each Interest Payment Date, as more fully set forth in the Senior
Notes Indenture and the Notes. Notwithstanding the fact that any securities for
which liquidated damages are due cease to be Transfer Restricted Securities, all
obligations of the Company to pay liquidated damages with respect to securities
shall survive until such time as such obligations with respect to such
securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company shall (x) comply with all applicable provisions of
Section 6(c) below, (y) use commercially reasonable efforts to effect such
exchange and to permit the resale of Series B Senior Notes by Broker-Dealers
that tendered in the Exchange Offer Series A Senior Notes that such
Broker-Dealer acquired for its own account as a result of its market making
activities or other trading activities (other than Series A Senior Notes
acquired directly from the Company or any of its Affiliates) being sold in
accordance with
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the intended method or methods of distribution thereof, and (z) comply with all
of the following provisions:
(i) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, that in the reasonable opinion of counsel to the Company
raises a substantial question as to whether the Exchange Offer is
permitted by applicable federal law, if and to the extent reasonable
under the circumstances, the Company hereby agrees to seek a no-action
letter or other favorable decision from the Commission allowing the
Company to Consummate an Exchange Offer for such Transfer Restricted
Securities. If and to the extent reasonable under the circumstances, the
Company hereby agrees to pursue the issuance of such a decision to the
Commission staff level.
(ii) As a condition to its participation in the Exchange
Offer, each Holder of Transfer Restricted Securities (including, without
limitation, any Holder who is a Broker Dealer) shall furnish, upon the
request of the Company, prior to the Consummation of the Exchange Offer,
a written representation to the Company (which may be contained in the
letter of transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an Affiliate of the Company,
(B) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any Person to participate in, a
distribution of the Series B Senior Notes to be issued in the Exchange
Offer and (C) it is acquiring the Series B Senior Notes in its ordinary
course of business. As a condition to its participation in the Exchange
Offer each Holder that is a Broker-Dealer using the Exchange Offer to
participate in a distribution of the Series B Senior Notes shall
acknowledge and agree that, if the resales are of Series B Senior Notes
obtained by such Holder in exchange for Series A Senior Notes acquired
directly from the Company or an Affiliate thereof, it (1) could not,
under Commission policy as in effect on the date of this Agreement, rely
on the position of the Commission enunciated in Xxxxxx Xxxxxxx and Co.,
Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including, if applicable, any no-action letter obtained pursuant to
clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection with a
secondary resale transaction and that such a secondary resale
transaction must be covered by an effective registration statement
containing the selling security holder information required by Item 507
or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall provide a supplemental letter
to the Commission (A) stating that the Company is registering the
Exchange Offer in reliance on the position of the Commission enunciated
in Exxon Capital Holdings Corporation (available May 13, 1988), Xxxxxx
Xxxxxxx and Co., Inc. (available June 5, 1991) as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and, if
applicable, any no-action letter obtained pursuant to clause (i) above,
(B) including a representation that the Company has not entered into any
arrangement or understanding with any Person to distribute the Series B
Senior Notes to be received in the Exchange Offer and that, to the best
of the Company's information and belief, each Holder participating in
the Exchange Offer is acquiring the Series B Senior Notes in its
ordinary course of business and has no arrangement or understanding with
any Person to participate in the distribution of the Series B Senior
Notes received in the Exchange Offer and (C) any other undertaking or
representation required by the Commission as set forth in any no-action
letter obtained pursuant to clause (i) above, if applicable.
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(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall:
(i) comply with all the provisions of Section 6(c) below and
use commercially reasonable efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof
(as indicated in the information furnished to the Company pursuant to
Section 4(b) hereof), and pursuant thereto the Company will prepare and
file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof
within the time periods and otherwise in accordance with the provisions
hereof, and
(ii) issue, upon the request of any Holder or purchaser of
Series A Senior Notes covered by any Shelf Registration Statement
contemplated by this Agreement, Series B Senior Notes having an
aggregate principal amount equal to the aggregate principal amount of
Series A Senior Notes sold pursuant to the Shelf Registration Statement
and surrendered to the Company for cancellation; the Company shall
register Series B Senior Notes on the Shelf Registration Statement for
this purpose and issue the Series B Senior Notes to the purchaser(s) of
securities subject to the Shelf Registration Statement in the names as
such purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the Company
shall:
(i) use commercially reasonable efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event subject to
Section 4(c) above that would cause any such Registration Statement or
the Prospectus contained therein (A) to contain an untrue statement of
material fact or omit to state any material fact necessary to make the
statements therein not misleading or (B) not to be effective and usable
for resale of Transfer Restricted Securities during the period required
by this Agreement, the Company shall file promptly an appropriate
amendment to such Registration Statement curing such defect, and, if
Commission review is required, use commercially reasonable efforts to
cause such amendment to be declared effective as soon as practicable.
(ii) subject to Section 4(c) above, prepare and file with the
Commission such amendments and post-effective amendments to the
applicable Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as the case may be; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with Rules 424, 430A and 462, as applicable, under the Act
in a timely manner; and comply with the provisions of the Act with
respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof
set forth in such Registration Statement or supplement to the
Prospectus;
(iii) advise each Holder that is a Broker-Dealer and each
Initial Purchaser who is required to deliver a prospectus in connection
with sales or market making activities (an "Affiliated Market Maker") to
the extent the Company is aware of the same, promptly and, if requested
by such Person, confirm such advice in writing, (A) when the Prospectus
or any Prospectus supplement or post-effective amendment has been filed,
and, with respect to any
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applicable Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Act
or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or sale
in any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening of
any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the
Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes
in the Prospectus in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the
Company shall use commercially reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(v) upon request, furnish to each Holder and each Affiliated
Market Maker in connection with such exchange or sale, if any, before
filing with the Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements to any such
Registration Statement or Prospectus, which documents will be subject to
the review and comment of such Persons in connection with such sale, if
any, for a period of at least five Business Days, and the Company will
not file any such Registration Statement or Prospectus or any amendment
or supplement to any such Registration Statement or Prospectus to which
such Persons shall reasonably object within five Business Days after the
receipt thereof;
(vi) make available, at reasonable times, for inspection by
each Holder and each Affiliated Market Maker and any attorney or
accountant retained by such Persons, all financial and other records,
pertinent corporate documents of the Company and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such Persons, attorney or accountant in connection with
such Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness;
(vii) if requested by any Holders in connection with such
exchange or sale or any Affiliated Market Maker, promptly include in any
Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such Persons
may reasonably request to have included therein relating to the "Plan of
Distribution" of the Transfer Restricted Securities and the use of the
Registration Statement or Prospectus for market making activities; and
make all required filings of such Prospectus supplement or
post-effective
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amendment as soon as practicable after the Company is notified of the
matters to be included in such Prospectus supplement or post-effective
amendment;
(viii) upon the request furnish to such Holder in connection
with such exchange or sale and each Affiliated Market Maker, without
charge, at least one copy of the Registration Statement, as first filed
with the Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(ix) deliver to each Holder and each Affiliated Market Maker
without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Company hereby consents to the use
(in accordance with law) of the Prospectus and any amendment or
supplement thereto by each selling Person in connection with the
offering and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto and all market
making activities of such Affiliated Market Maker, as the case may be;
(x) upon the request of any Holder who is a Broker-Dealer or
any Affiliated Market Maker, make representations and warranties as
reasonably requested and take all such other actions as reasonably
requested in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
applicable Registration Statement contemplated by this Agreement as may
be reasonably requested by any such Holder or Affiliated Market Maker in
connection with any sale or resale pursuant to any applicable
Registration Statement. In connection with the exchange or disposition
of Transfer Restricted Securities pursuant to a Registration Statement,
the Company shall:
(A) upon request of any Holder, furnish (or in the
case of paragraphs (2) and (3), use commercially reasonable
efforts to cause to be furnished) to each Person, upon
Consummation of the Exchange Offer or upon the effectiveness of
the Shelf Registration Statement, as the case may be:
(1) a certificate, dated such date, signed
on behalf of the Company by (x) the President or any
Vice President and (y) a principal financial or
accounting officer of the Company, confirming, as of the
date thereof, the matters set forth in Sections
6(n)(iii) and (iv), 6(o) and 6(q) of the Purchase
Agreement and such other similar matters as such Person
may reasonably request;
(2) an opinion, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, of counsel for the Company covering
matters similar to those set forth in paragraph (x) of
Section 6(d) of the Purchase Agreement, and in any event
including a statement to the effect that such counsel
has participated in conferences with officers and other
representatives of the Company, representatives of the
independent certified public accountants of the Company
at which the contents of the applicable Registration
Statement were discussed and, although such counsel is
not passing upon and assumes no responsibility for, the
accuracy, completeness or fairness of the statements
contained in the applicable Registration Statement
(except as indicated above), on the basis of the
foregoing, no facts came to such counsel's attention
which led such counsel to believe that the applicable
Registration Statement, at the time such Registration
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Statement or any post-effective amendment thereto became
effective and, in the case of the Exchange Offer
Registration Statement, as of the date of Consummation
of the Exchange Offer, contained an untrue statement of
a material fact or omitted to state a material fact
necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the case
of the opinion dated the date of Consummation of the
Exchange Offer, as of the date of Consummation,
contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading. Without limiting the foregoing, such counsel
may state further that such counsel assumes no
responsibility for, and has not independently verified,
the accuracy, completeness or fairness of the financial
statements and schedules and other financial data
included in any Registration Statement contemplated by
this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the
date of Consummation of the Exchange Offer, or as of the
date of effectiveness of the Shelf Registration
Statement, as the case may be, from the Company's
independent accountants, in the customary form and
covering matters of the type customarily covered in
comfort letters to underwriters in connection with
underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to
Sections 6(j) and (k) of the Purchase Agreement; and
(B) deliver such other documents and certificates as
may be reasonably requested by the selling Holders to evidence
compliance with the matters covered in clause (A) above and with
any customary conditions contained in the any agreement entered
into by the Company pursuant to this clause (xi);
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all
other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that the Company
shall not be required to register or qualify as a foreign corporation
where it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation, other than
as to matters and transactions relating to the Registration Statement,
in any jurisdiction where it is not now so subject; (xii) in connection
with any sale of Transfer Restricted Securities that will result in such
securities no longer being Transfer Restricted Securities, cooperate
with the Holders to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold and
not bearing any restrictive legends; and to register such Transfer
Restricted Securities in such denominations and such names as the
selling Holders may request at least two Business Days prior to such
sale of Transfer Restricted Securities;
(xiii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration Statement
covering such Transfer Restricted Securities and provide the Trustee
under the Senior Notes Indenture with printed certificates for the
Transfer
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Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xiv) otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is
defined in paragraph (c) of Rule 158 under the Act);
(xv) cause the Senior Notes Indenture to be qualified under
the TIA not later than the effective date of the first Registration
Statement required by this Agreement and, in connection therewith,
cooperate with the Trustee and the Holders to effect such changes to the
Senior Notes Indenture as may be required for such Senior Notes
Indenture to be so qualified in accordance with the terms of the TIA;
and execute and use commercially reasonable efforts to cause the Trustee
to execute, all documents that may be required to effect such changes
and all other forms and documents required to be filed with the
Commission to enable such Senior Notes Indenture to be so qualified in a
timely manner; and
(xvi) provide promptly to each Holder and Affiliated Market
Maker, upon request, each document filed with the Commission pursuant to
the requirements of Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security and each Affiliated Market Maker agrees that, upon
receipt of the notice referred to in Section 4(c) or 6(c)(iii)(C) or any notice
from the Company of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof (in each case, a "Suspension Notice"), such Person will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until (i)(A) such Person has received
copies of the supplemented or amended Prospectus contemplated by Section
6(c)(iv) hereof, or (B) such Person is advised in writing by the Company that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus (in each case, the "Recommencement Date"). Each Person receiving a
Suspension Notice hereby agrees that it will either (ii)(A) destroy any
Prospectuses, other than permanent file copies, then in such Person's possession
which have been replaced by the Company with more recently dated Prospectuses or
(B) deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Person's possession of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of the Suspension Notice. The time period regarding the effectiveness of
such Registration Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by a number of days equal to the number of days in the period
from and including the date of delivery of the Suspension Notice to the date of
delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses; (ii) all fees and
expenses of compliance with federal securities and state Blue Sky or securities
laws; (iii) all expenses of printing (including printing certificates for the
Series B Senior Notes to be issued in the Exchange Offer and printing of
Prospectuses whether for exchanges, sales, market making or otherwise),
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel for the Company; (v) all
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application and filing fees in connection with listing the Series B Senior Notes
on a national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities who are
tendering Series A Senior Notes into in the Exchange Offer and/or selling or
reselling Series A Senior Notes or Series B Senior Notes pursuant to the "Plan
of Distribution" contained in the Exchange Offer Registration Statement or the
Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one counsel, who shall be Xxxxxx & Xxxxxxx,
unless another firm shall be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder,
its directors, officers, employees, representatives and agents and each Person,
if any, who controls such Holder (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) (collectively, the "Holder Indemnified Parties")
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which that Holder Indemnified Party may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage or
liability or action arises out of or is based upon (i)(A) any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement, preliminary prospectus or Prospectus (or any amendment or supplement
thereto) provided by the Company to any Holder or any prospective purchaser of
Series B Senior Notes or registered Series A Senior Notes, or (B) the omission
or alleged omission to state therein (or in any amendment or supplement thereto)
a material fact required to be stated therein or necessary to make the
statements therein not misleading and shall reimburse each Holder Indemnified
Party promptly upon demand for any legal or other expenses reasonably incurred
by that Holder Indemnified Party in connection with investigating or preparing
to defend or defending against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of or is based upon (ii)(A) any untrue statement or alleged
untrue statement in or (B) omission or alleged omission from any Registration
Statement, preliminary prospectus or Prospectus (or any amendment or supplement
thereto) provided by the Company to any Holder or any prospective purchaser of
Series B Senior Notes or registered Series A Senior Notes in reliance upon and
in conformity with written information furnished to the Company by and of the
Holders specifically for use therein. This indemnity agreement is not exclusive
and will be in addition to any liability which the Company might otherwise have
and shall not limit any rights or remedies which may otherwise be available at
law or in equity to each Holder Indemnified Party.
(b) Each Holder of Transfer Restricted agrees, severally and not
jointly, shall indemnify and hold harmless the Company, its officers, employees,
representatives, agents, directors and each person, if any, who controls (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the
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Company (collectively the "Company Indemnified Parties" and each a "Company
Indemnified Party") against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company Indemnified
Parties may become subject, under the Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto) provided by the Company to any Holder or any prospective
purchaser of Series B Senior Notes or registered Series A Senior Notes, or (ii)
the omission or alleged omission to state therein (or in any amendment or
supplement thereto) a material fact required to be stated therein or necessary
to make the statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Holder specifically for use
therein, and shall reimburse the Company Indemnified Parties for any legal or
other expenses reasonably incurred by such parties in connection with
investigating or preparing to defend or defending against or appearing as third
party witness in connection with any such loss, claim, damage, liability or
action as such expenses are incurred. In no event shall any Holder, its
directors, officers, employees, representatives and agents or any Person who
controls such Holder be liable or responsible for any amount in excess of the
amount by which the total amount received by such Holder with respect to its
sale of Transfer Restricted Securities pursuant to a Registration Statement
exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities and (ii) the amount of any damages that such Holder, its directors,
officers or any Person who controls such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure; and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same
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jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys at any time for all such indemnified parties, which firm shall be
designated in writing by a majority of the Holders, if the indemnified parties
under this Section 8 consist of any Holder Indemnified Parties, or by the
Company if the indemnified parties under this Section 8 consist of any Company
Indemnified Parties. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 8(a) and (b), shall use all reasonable efforts
to cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under Section
8(a) or 8(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i)(A) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company, on the one hand, and the Holder, on
the other, on their sale of Transfer Restricted Securities, or (B) if the
allocation provided by clause (i)(A) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i)(A) above but also the relative fault of the Company,
on the one hand, and of the Holder, on the other, on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Holder 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 and the Initial Purchasers agree that it would not be just and equitable
if contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), (ii)(A) no
Holder, its directors, officers, representatives or agents or any Person, if
any, who controls such Holder shall be required to contribute any amount in
excess of the amount by which the total received by such Holder with respect to
the sale of Transfer Restricted Securities pursuant to a Registration Statement
exceeds (x) the amount paid by such Holder for such Transfer Restricted
Securities and (y) the amount of any damages which such Holder has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission, and (B) any amount the Company would otherwise
be required to contribute shall be reduced by the amount the Company has
otherwise paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant to
this Section 8(d) are several in proportion to the respective principal amount
of Transfer Restricted Securities held by each Holder hereunder and not joint.
(e) The Company agrees that the indemnity and contribution
provisions of this Section 8 shall apply to Affiliated Market Makers to the same
extent, on the same conditions, as it applies to Holders.
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SECTION 9. RULE 144A AND RULE 144
The Company agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder, to such Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations under Sections 3 and 4 hereof may
result in material irreparable injury to the Initial Purchasers or the Holders
or Affiliated Market Makers for which there is no adequate remedy at law, that
it will not be possible to measure damages for such injuries precisely and that,
in the event of any such failure, the Initial Purchasers or any Holders or
Affiliated Market Makers may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 3 and 4 hereof.
The Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(c)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant to
the Exchange Offer, and that does not affect directly or indirectly the rights
of other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer, may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities subject to
such Exchange Offer.
(d) Third Party Beneficiary. The Holders and Affiliated Market
Makers shall be third party beneficiaries to the agreements made hereunder
between the Company, on the one hand, and the Initial Purchasers, on the other
hand, and shall have the right to enforce such agreements directly to the extent
they may deem such enforcement necessary or advisable to protect its rights or
the rights of Holders and Affiliated Market Makers hereunder.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
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(i) if to a Holder, at the address set forth on the records
of the Registrar under the Senior Notes Indenture, with a copy to the
Registrar under the Senior Notes Indenture; and
(ii) if to the Company:
Amkor Technology, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Telecopier No.: 000-000-0000
Attention: General Counsel
With a copy to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Senior Notes Indenture.
Upon the date of filing of the Exchange Offer or a Shelf Registration
Statement, as the case may be, notice shall be delivered to XX Xxxxx Securities
Corporation, on behalf of the Initial Purchasers (in the form attached hereto as
Exhibit A) and shall be addressed to: Attention: Xxxxxxx Frauen, SG Securities
Corporation, Attention: High Yield Syndicate, 1221 Avenue of the Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; provided, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Purchase Agreement or the
Senior Notes Indenture. If any transferee of any Holder shall acquire Transfer
Restricted Securities in any manner, whether by operation of law or otherwise,
such Transfer Restricted Securities shall be held subject to all of the terms of
this Agreement, and by taking and holding such Transfer Restricted Securities
such Person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement, including the
restrictions on resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such Person shall be entitled to receive the benefits
hereof.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
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(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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SIGNATURE PAGE TO SENIOR NOTES REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMKOR TECHNOLOGY, INC.
By: /s/
-------------------------------------
Name:
Title:
SIGNATURE PAGE TO SENIOR NOTES REGISTRATION RIGHTS AGREEMENT
21
XX XXXXX SECURITIES CORPORATION
By: /s/
--------------------------------
Name:
Title:
XXXXXXX XXXXX BARNEY INC.
By: /s/
--------------------------------
Name:
Title:
BT ALEX. XXXXX INCORPORATED
By: /s/
--------------------------------
Name:
Title:
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By: /s/
--------------------------------
Name:
Title:
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
By: /s/
--------------------------------
Name:
Title:
PRUDENTIAL SECURITIES INCORPORATED
By: /s/
--------------------------------
Name:
Title:
SIGNATURE PAGE TO SENIOR NOTES REGISTRATION RIGHTS AGREEMENT
22
EXHIBIT A
NOTICE OF FILING OF
A/B EXCHANGE OFFER REGISTRATION STATEMENT
To: SG Securities Corporation
Attention: High Yield Syndicate
1221 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Frauen
Fax: 000-000-0000
From: Amkor Technology, Inc.
9 1/4% Senior Notes due 2006
Date: ______________
For your information only (NO ACTION REQUIRED):
Today, ______, ____, we filed [an A/B Exchange Registration Statement/a
Shelf Registration Statement] with the Securities and Exchange Commission. We
currently expect this registration statement to be declared effective within __
business days of the date hereof.
