Exhibit 4.20
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INVESTORS RIGHTS AGREEMENT
DATED AS OF NOVEMBER 18, 2005
BETWEEN
AMKOR TECHNOLOGY, INC.
AND
THE INVESTORS NAMED HEREIN
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INVESTORS RIGHTS AGREEMENT
This Investors Rights Agreement (the "Agreement") is made and entered into
this 18th day of November, 2005, between Amkor Technology, Inc., a Delaware
corporation (the "Company"), and the individuals and entities (the "Investors")
listed on the signature pages to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Note Purchase Agreement, dated as of
November 14, 2005, between the Company and the Investors (the "Purchase
Agreement"), which provides for the sale by the Company to the Investors of
$100,000,000 aggregate principal amount of the Company's 6 1/4% Convertible
Subordinated Notes due 2013 (the "Securities"). In order to induce the Investors
to enter into the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall
have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time to
time.
"1934 Act" shall mean the Securities Exchange Act of l934, as amended from
time to time.
"1939 Act" shall mean the Trust Indenture Act of 1939, as amended from time
to time.
"Affiliated Entities" shall mean Xxxxx X. Xxx and his estates, spouses,
ancestors and lineal descendants (and spouses thereof), the legal
representatives of any of the foregoing, and the trustee of any bona fide trust
of which one or more of the foregoing are sole beneficiaries or the grantors, or
any Person of which any of the forgoing, individually or collectively,
beneficially own (as defined in Rules 13d-3 and 13d-5 under the Exchange Act)
voting securities representing at least a majority of the total voting power of
all classes of Capital Stock of such Person (exclusive of any matters as to
which class voting rights exist).
"Closing Date" shall mean the Closing as defined in the Purchase Agreement.
"Common Stock" shall mean any shares of common stock, $0.001 par value, of
the Company and any other shares of common stock as may constitute "Common
Stock" for purposes of the Indenture.
"Company" shall have the meaning set forth in the preamble and shall also
include the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, provided, however, that such depositary
must have an address in the Borough of Manhattan, in the City of New York.
"Holder" shall mean each Investor, for so long as it owns any Registrable
Securities, and each of such Investor's successors, assigns and direct and
indirect transferees pursuant to the terms of this Agreement.
"Indenture" shall mean the Indenture relating to the Securities, dated as
of November 18, 2005, between the Company and U.S. Bank National Association, as
trustee, as the same may be amended, supplemented, waived or otherwise modified
from time to time in accordance with the terms thereof.
"Investors" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Securities (assuming conversion of
all Securities into Common Stock); provided that whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Company shall be
disregarded in determining whether such consent or approval was given by the
Holders of such required percentage amount.
"Person" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated organization, or
a government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Shelf Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by a Shelf Registration Statement, and by
all other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean all or any of the Securities issued
from time to time under the Indenture in registered form, and the shares of
Common Stock issuable upon conversion of such Securities; provided, however,
that any such Securities shall cease to be Registrable Securities when (i) a
Shelf Registration Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities shall have been
disposed of pursuant to such Shelf Registration Statement, (ii) such Securities
have been sold or transferred to the public pursuant to Rule l44, if available
(or any similar provision then in force, including Rule 144(k) but not Rule
144A) under the 1933 Act, or (iii) such Securities shall have ceased to be
outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing
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fees, including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be retained by
any holder of Registrable Securities in accordance with the rules and
regulations of the NASD, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws and compliance with the rules
of the NASD (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Registrable Securities and any filings with the NASD), (iii) all expenses of the
Company in preparing or assisting in preparing, word processing, printing and
distributing any Shelf Registration Statement, any Prospectus, any amendments or
supplements thereto, any securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all fees
and expenses incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges, (v) all rating
agency fees, (vi) the fees and disbursements of counsel for the Company and of
the independent public accountants of the Company, including in connection with
the Underwritten Offering the expenses of any special audits or "comfort"
letters required by or incident to such performance and compliance, (vii) the
reasonable fees and expenses of the Trustee, and any escrow agent or custodian,
(viii) the reasonable fees and expenses of a single counsel to the Holders in
connection with the Shelf Registration Statement, which counsel shall be
selected by the Majority Holders, and any fees and expenses of any special
experts retained by the Company in connection with any Shelf Registration
Statement, but excluding any underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable Securities by
a Holder.
"SEC" shall mean the United States Securities and Exchange Commission or
any successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to Section
2.1 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company pursuant to the provisions of Section 2.2 of this Agreement which
covers all of the Registrable Securities on an appropriate form under Rule 415
under the 1933 Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Trustee" shall mean the trustee with respect to the Securities under the
Indenture.
2. Registration Under the 0000 Xxx.
2.1 Shelf Registration.
(a) Subject to Section 3(B)(b), the Company shall, at its cost,
no later than 90 days after the Closing Date, file with the SEC, and thereafter
shall use its commercially reasonable efforts to cause to be declared effective
as promptly as practicable but no later than 180 days after the Closing Date, a
Shelf Registration Statement relating to the offer and sale of the Registrable
Securities by the Holders that have provided the information pursuant to Section
2.1(d); provided, however, that in the event that the Company is eligible for,
and elects to utilize, the
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"automatic shelf" registration procedure on Form S-3 available to "well-known
seasoned issuers," the only obligation of the Company under this Section 2.1(a)
shall be to file a Shelf Registration Statement with the SEC no later than 120
days after the Closing Date, which Shelf Registration Statement shall become
immediately effective upon filing pursuant to the SEC rules adopted in Release
No. 33-8591; provided, further, that the Company may, upon written notice to all
Holders, defer the filing or the effectiveness of the Shelf Registration
Statement, or defer the filing of the Shelf Registration Statement if the
Company is eligible for, and elects to utilize, the "automatic shelf"
registration procedure, for a reasonable period not to exceed 45 days if the
Company is engaged in non-public negotiations or other non-public business
activities, disclosure of which would be required in such Shelf Registration
Statement (but would not be required if such Shelf Registration Statement were
not filed), and the Chief Financial Officer of the Company determines in good
faith that such disclosure would have a material adverse effect on the Company
and its subsidiaries taken as a whole.
(b) The Company shall, at its cost, use its commercially
reasonable efforts, subject to Section 2.5, to keep the Shelf Registration
Statement continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of three years from the last date
of original issuance of any of the Securities, or for such shorter period that
will terminate when all Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement or cease
to be outstanding or otherwise to be Registrable Securities (the "Effectiveness
Period").
(c) Notwithstanding any other provisions hereof, the Company
shall use its commercially reasonable efforts to ensure that (i) any Shelf
Registration Statement and any amendment thereto and any Prospectus forming part
thereof and any supplement thereto complies in all material respects with the
1933 Act and the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
and (iii) any Prospectus forming part of any Shelf Registration Statement, and
any supplement to such Prospectus (as amended or supplemented from time to
time), does not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(d) Notwithstanding any other provision hereof, no Holder of
Registrable Securities may include any of its Registrable Securities in the
Shelf Registration Statement pursuant to this Agreement unless such Holder
furnishes to the Company such information in writing as the Company may
reasonably request for use in connection with the Shelf Registration Statement
or Prospectus included therein and in any application to be filed with or under
state securities laws. Each Holder named as a selling securityholder in the
Prospectus agrees to promptly furnish to the Company all information required to
be disclosed in order to make information previously furnished to the Company by
the Holder not materially misleading and any other information regarding such
Holder and the distribution of such Holder's Registrable Securities as the
Company may from time to time reasonably request in writing.
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(e) Each Holder agrees not to sell any Registrable Securities
pursuant to the Shelf Registration Statement without delivering, or causing to
be delivered, a Prospectus to the purchaser thereof and, following termination
of the Effectiveness Period, to notify the Company, within ten days of a written
request by the Company, of the amount of Registrable Securities sold pursuant to
the Shelf Registration Statement.
The Company shall not permit any securities other than
Registrable Securities to be included in the Shelf Registration Statement. The
Company further agrees, if necessary, to supplement or amend the Shelf
Registration Statement, as required by Section 2.3(b) below, and to furnish to
the Holders of Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
2.2 Expenses. The Company shall promptly pay all Registration Expenses
in connection with the registration pursuant to Section 2.1. Each Holder shall
pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
2.3 Effectiveness. A Shelf Registration Statement pursuant to Section
2.1 hereof will not be deemed to have become effective unless it has been
declared effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court, such
Shelf Registration Statement will be deemed not to have become effective during
the period of such interference, until the offering of Registrable Securities
pursuant to such Shelf Registration Statement may legally resume.
2.4 Interest. In the event that (a) a Shelf Registration Statement is
not declared effective on or prior to November 18, 2006, (b) after
effectiveness, subject to Section 2.5, the Shelf Registration Statement fails to
be effective or usable by the Holders without being succeeded within seven
business days by a post-effective amendment or a report filed with the SEC
pursuant to the 1934 Act that cures the failure to be effective or usable, or
(c) the Shelf Registration Statement is unusable by the Holders for any reason,
and the aggregate number of days in any consecutive three-month or twelve-month
period, as applicable, for which the Shelf Registration Statement shall not be
usable exceeds the Suspension Period (as defined in Section 2.5 hereof) (each
such event being a "Registration Default"), additional interest, as liquidated
damages ("Liquidated Damages"), will accrue at a rate per annum of one-quarter
of one percent (0.25%) of the principal amount of the Securities for the first
90-day period from day following the Registration Default, and thereafter at a
rate per annum of one-half of one percent (0.50%) of the principal amount of the
Securities, provided that in no event shall Liquidated Damages accrue at a rate
per annum exceeding one half of one percent (0.50%) of the issue price of the
Securities; provided further that no Liquidated Damages shall accrue after the
third anniversary of the date of this Agreement; provided further that
Liquidated Damages shall not accrue under clauses (b) and (c) above with respect
to any Holder that is not named as a Selling Holder in the Shelf Registration
Statement; and provided further that no Liquidated Damages shall accrue if,
pursuant to Section 2.1(a) hereof, the Company defers the effectiveness of the
Shelf Registration Statement, for a reasonable period not to exceed 45 days if
the Company is engaged in non-public negotiations or other non-public business
activities, disclosure of
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which would be required in such Shelf Registration Statement (but would not be
required if such Shelf Registration Statement were not filed), and the Board of
Directors of the Company or a committee of the Board of Directors of the Company
determines in good faith that such disclosure would have a material adverse
effect on the Company and its subsidiaries taken as a whole. Upon the cure of
all Registration Defaults then continuing, the accrual of Liquidated Damages
will automatically cease and the interest rate borne by the Securities will
revert to the original interest rate at such time. Liquidated Damages shall be
computed based on the actual number of days elapsed in each 90-day period in
which the Shelf Registration Statement is not effective or is unusable. Holders
who have converted Securities into Common Stock will not be entitled to receive
any Liquidated Damages with respect to such Common Stock or the issue price of
the Securities converted.
The Company shall notify the Trustee within three business days after
each and every date on which an event occurs in respect of which Liquidated
Damages are required to be paid. Liquidated Damages shall be paid by depositing
with the Trustee, in trust, for the benefit of the Holders of Registrable
Securities, on or before the applicable semiannual interest payment date,
immediately available funds in sums sufficient to pay the Liquidated Damages
then due. The Liquidated Damages due shall be payable on each interest payment
date to the record Holder of Registrable Securities entitled to receive the
interest payment to be paid on such date as set forth in the Indenture. Each
obligation to pay Liquidated Damages shall be deemed to accrue from and
including the day following the Registration Default to but excluding the day on
which the Registration Default is cured.
A Registration Default under clause (a) above shall be cured on the
date that the Registration Statement is filed with the SEC. A Registration
Default under clause (b) above shall be cured on the date that the Shelf
Registration Statement is declared effective by the SEC. A Registration Default
under clauses (c) or (d) above shall be cured on the date an amended Shelf
Registration Statement is declared effective by the SEC or the Company otherwise
declares the Shelf Registration Statement and the Prospectus useable, as
applicable. The Company will have no liabilities for monetary damages with
respect to any Registration Default for which Liquidated Damages are expressly
provided for herein.
2.5 Suspension. The Company may suspend the use of any Prospectus,
without incurring or accruing any obligation to pay Liquidated Damages pursuant
to Section 2.4 hereof, for a period not to exceed 45 calendar days in any
three-month period, or an aggregate of 90 calendar days in any twelve-month
period, (each, a "Suspension Period") if the Board of Directors of the Company
shall have determined in good faith that because of valid business reasons (not
including avoidance of the Company's obligations hereunder), including without
limitation proposed or pending corporate developments and similar events or
because of filings with the SEC, it is in the best interests of the Company to
suspend such use, and prior to suspending such use the Company provides the
Holders with written notice of such suspension, which notice need not specify
the nature of the event giving rise to such suspension. Each Holder shall keep
confidential any communications received by it from the Company regarding the
suspension of the use of the Prospectus, except as required by applicable law.
3. Registration Procedures.
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(A) In connection with the obligations of the Company with respect to
the Shelf Registration, the Company shall:
(a) prepare and file with the SEC a Shelf Registration Statement,
within the relevant time period specified in Section 2, on the appropriate form
under the 1933 Act, which form (i) shall be selected by the Company, (ii) shall
be available for the sale of the Registrable Securities by the selling Holders
thereof, (iii) shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate by reference all
financial statements required by the SEC to be filed therewith or incorporated
by reference therein, and (iv) shall comply in all respects with the applicable
requirements of Regulation S-T under the 1933 Act, if any, and use commercially
reasonable efforts to cause such Shelf Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) promptly prepare and file with the SEC such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary under applicable law to respond to comments from the SEC and to keep
the Shelf Registration Statement effective for the Effectiveness Period, subject
to Section 2.4; and cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provision then in force) under the 1933 Act and comply during
the Effectiveness Period with the provisions of the 1933 Act, the 1934 Act and
the rules and regulations thereunder required to enable the disposition of all
Registrable Securities covered by the Shelf Registration Statement in accordance
with the intended method or methods of distribution by the selling Holders
thereof;
(c) (i) notify each Holder of Registrable Securities of the
filing, by issuing a press release, of a Shelf Registration Statement with
respect to the Registrable Securities; (ii) furnish to each Holder of
Registrable Securities that has provided the information required by Section
2.1(d) and to each underwriter of an underwritten offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus, including
each preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder or underwriter may reasonably request, including
financial statements and schedules and, if the Holder so requests, all exhibits
in order to facilitate the unrestricted sale or other disposition of the
Registrable Securities; and (iii) subject to Section 2.4 hereof and to any
notice by the Company in accordance with Section 3(e) hereof of the existence of
any fact of the kind described in Sections 3(e)(ii), (iii), (iv), (v) and (vi)
hereof, hereby consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Registrable Securities that
has provided the information required by Section 2.1(d) in connection with the
offering and sale of the Registrable Securities;
(d) use commercially reasonable efforts to register or qualify
the Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions as any Holder of Registrable Securities covered by a
Shelf Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request, and do any and all other acts
and things which may be reasonably necessary or advisable to enable each such
Holder and underwriter to consummate the disposition in each such jurisdiction
of such Registrable Securities owned by such Holder; provided, however, that the
Company shall not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not
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otherwise be required to qualify but for this Section 3(d), or (ii) take any
action which would subject it to general service of process or taxation in any
such jurisdiction where it is not then so subject;
(e) notify promptly each Holder of Registrable Securities under a
Shelf Registration that has provided the information required by Section 2.1(d)
and, if requested by such Holder, confirm such advice in writing promptly (i)
when a Shelf Registration Statement has become effective and when any
post-effective amendments thereto become effective, (ii) of any request by the
SEC or any state securities authority for post-effective amendments and
supplements to a Shelf Registration Statement and Prospectus or for additional
information after the Shelf Registration Statement has become effective, (iii)
of the issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Shelf Registration Statement or the initiation
of any proceedings for that purpose, (iv) of the happening of any event or the
discovery of any facts during the period a Shelf Registration Statement is
effective which makes any statement made in such Shelf Registration Statement or
the related Prospectus untrue in any material respect or which requires the
making of any changes in such Shelf Registration Statement or Prospectus in
order to make the statements therein not misleading, (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vi) of any determination by
the Company that a post-effective amendment to such Shelf Registration Statement
would be appropriate;
(f) [reserved];
(g) use commercially reasonable efforts to obtain the withdrawal
of any order suspending the effectiveness of a Shelf Registration Statement at
the earliest possible moment;
(h) furnish to each Holder of Registrable Securities that has
provided the information required by Section 2.1(d), and each underwriter, if
any, without charge, at least one conformed copy of each Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules (without documents incorporated therein by reference
and all exhibits thereto, unless requested);
(i) cooperate with the Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends (other
than as required by the Company's certificate of incorporation or bylaws or
applicable law); and enable such Registrable Securities to be in such
denominations (consistent with the provisions of the Indenture) and registered
in such names as the selling Holders or the underwriters, if any, may reasonably
request at least three business days prior to the closing of any sale of
Registrable Securities;
(j) upon the occurrence of any event or the discovery of any
facts, each as contemplated by Sections 3(e)(ii), (iii), (iv), (v) and (vi)
hereof, as promptly as practicable after the occurrence of such an event, use
commercially reasonable efforts to prepare a supplement or post-effective
amendment to the Shelf Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain at the time of such
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delivery any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading or will remain so qualified. At such
time as such public disclosure is otherwise made or the Company determines that
such disclosure is not necessary, in each case to correct any misstatement of a
material fact or to include any omitted material fact, the Company agrees
promptly to notify each Holder that has provided the information required by
Section 2.1(d) of such determination and to furnish each Holder such number of
copies of the Prospectus as amended or supplemented, as such Holder may
reasonably request;
(k) no less than three (3) business days prior to the filing of
any Shelf Registration Statement, any Prospectus, any amendment to a Shelf
Registration Statement or amendment or supplement to a Prospectus (other than
amendments and supplements that do nothing more than name Holders and provide
information with respect thereto), provide copies of such document to the
Holders, and make representatives of the Company, as shall be reasonably
requested by the Holders of Registrable Securities, available for discussion of
such document;
(l) provide the Trustee with printed certificates for the
Registrable Securities in a form eligible for deposit with the Depositary, if
applicable;
(m) (i) cause the Indenture to be qualified under the 1939 Act in
connection with the registration of the Registrable Securities, (ii) cooperate
with the Trustee and the Holders to effect such changes to the Indenture as may
be required for the Indenture to be so qualified in accordance with the terms of
the 1939 Act, and (iii) execute, and use commercially reasonable efforts to
cause the Trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner;
(n) a reasonable time prior to filing the Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to the Shelf
Registration Statement or amendment or supplement to such Prospectus (other than
amendments and supplements that do nothing more than name Holders and provide
information with respect thereto), furnish to the Investors and one special
counsel to the Investors copies of all such documents proposed to be filed and
use its commercially reasonable efforts to reflect in each such document when so
filed with the SEC such comments as the Investors and such special counsel to
the Investors reasonably shall propose within three (3) business days of the
delivery of such copies to the Investors and counsel to the Investors. In
addition, if any Holder shall so request in writing, a reasonable time prior to
filing any such documents, the Company shall furnish to such Holder copies of
all such documents proposed to be filed and use its reasonable efforts to
reflect in each such document when so filed with the SEC such comments as such
Holder reasonably shall propose within three (3) business days of the delivery
of such copies to such Holder;
(o) use its commercially reasonable efforts to cause all
Registrable Securities to be listed on any securities exchange or inter-dealer
quotation system on which similar debt securities issued by the Company are then
listed if requested by the Majority Holders, or if requested by the underwriter
or underwriters of an underwritten offering of Registrable Securities, if any;
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(p) otherwise comply with all applicable rules and regulations of
the SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
and
Each Holder agrees that, upon receipt of any notice from the
Company of the happening of any event or the discovery of any facts, each of the
kind described in Section 3(e)(ii), (iii), (iv), (v) and (vi) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to the Prospectus included in the Shelf Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(j) hereof or written notice from the Company that the
Shelf Registration Statement is again effective and no amendment or supplement
is needed, and, if so directed by the Company, such Holder will deliver to the
Company (at the Company's expense) all copies in such Holder's possession, other
than permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
(B) Each Investor agrees and acknowledges that:
(a) So long as such Investor is an Affiliate of the Company, such
Investor shall not transfer or sell any of its Registrable Securities pursuant
to the Shelf Registration Statement at any time when either (i) any blackout
period under the Company's xxxxxxx xxxxxxx policy is in effect and applicable to
all executive officers of the Company or (ii) such Investor is in possession of
any material non-public information with respect to the Company; and
(b) NO SECURITIES OR SHARES OF COMMON STOCK ISSUED UPON
CONVERSION OF SECURITIES MAY BE TRANSFERRED OR EXCHANGED DURING THE PERIOD FROM
THE CLOSING DATE UNTIL NOVEMBER __, 2006; PROVIDED, HOWEVER, THAT A HOLDER OF
SECURITIES OR SHARES OF COMMON STOCK ISSUED UPON CONVERSION OF SECURITIES MAY
TRANSFER SUCH SECURITIES OR SHARES OF COMMON STOCK ISSUED UPON CONVERSION OF
SECURITIES TO AN AFFILIATED ENTITY, PROVIDED THAT SUCH AFFILIATED ENTITY AGREES
TO BE BOUND BY THE TRANSFER PROVISIONS OF THE INDENTURE AND THIS AGREEMENT.
4. Indemnification; Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder who
has provided information to the Company in accordance with Section 2.1(d)
hereof, each Person who participates as an underwriter (any such Person being an
"Underwriter") and each Person, if any, who controls any Holder or Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Shelf Registration
Statement (or any amendment or supplement thereto) pursuant to which Registrable
Securities were registered under the 1933 Act, including all
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documents incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading, or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 4(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all reasonable out-of-pocket expense
whatsoever, as incurred (including the reasonable fees and disbursements of
counsel chosen by any indemnified party), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is not
paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of any Holder or Underwriter expressly for use in a Shelf Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto); provided, further, that this indemnity provision shall not
apply to any loss, liability, claim, damage or expense if the Holder fails to
deliver at or prior to the written confirmation of sale the most recent
Prospectus furnished to such Holder by the Company and such Prospectus, as
amended or supplemented as of the time of such confirmation of sale, including
any amendment or supplement filed with the SEC that is incorporated by reference
in the Prospectus), would have corrected such untrue statement or omission or
alleged untrue statement or omission of a material fact and delivery thereof was
required by law.
(b) Each Holder who has provided information to the Company in
accordance with Section 2.1(d) hereof, severally, but not jointly, agrees to
indemnify and hold harmless the Company, each Underwriter and the other selling
Holders who have provided information to the Company in accordance with Section
2.1(d) hereof, and each of their respective directors and officers, and each
Person, if any, who controls the Company, the Investors, any Underwriter or any
other selling Holder within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 4(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
with respect to such Holder furnished to the
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Company by or on behalf of such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto); provided, however, that no such Holder shall
be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Securities pursuant to such
Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action or proceeding commenced
against it in respect of which indemnity may be sought hereunder, but failure so
to notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4 (whether or
not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Holders on the other
hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
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The relative fault of the Company on the one hand and the Holders on the
other hand shall be determined by reference to, among other things, whether any
such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company, or by the Holders, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 4 were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 4. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 4 shall be deemed to include any
reasonable out-of-pocket legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 4, no Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities sold by it were offered exceeds the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls a Holder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such Holder, and each director of
the Company, and each Person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company.
5. Underwritten Offering. With the prior written agreement of the Company,
the Holders may sell Registrable Securities (in whole or in part) in a
registration in which such securities are sold to an underwriter for reoffering
to the public pursuant to the Shelf Registration Statement (an "Underwritten
Offering"). Upon receipt of such a request, the Company shall provide each
Holder written notice of the request, which notice shall inform such Holder that
it has the opportunity to participate in the Underwritten Offering. In any such
Underwritten Offering, the managing underwriters thereof will be selected by,
and the underwriting arrangements with respect thereto (including the size of
the offering) will be approved by, the Majority Holders of the Registrable
Securities to be included in such offering; provided, however, that such
managing underwriters and underwriting arrangements must be reasonably
satisfactory to the Company and provided, further, that the Company will only be
obligated to undertake two Underwritten Offerings pursuant to this Agreement. A
Holder may not participate in the Underwritten Offering contemplated hereby
unless (a) such Holder agrees to sell its Registrable Securities to be included
in the Underwritten Offering in accordance with any approved underwriting
arrangements, and (b) such
-13-
Holder completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such approved underwriting arrangements.
Notwithstanding the foregoing, upon receipt of a request from the managing
underwriters or a Holder of the Registrable Securities to be included in the
Underwritten Offering to prepare and file an amendment or supplement to the
Shelf Registration Statement and Prospectus in connection with the Underwritten
Offering, the Company shall promptly file such amendment or supplement;
provided, however, that the Company may delay the filing of any such amendment
or supplement for up to 30 days if the Board of Directors of the Company shall
have determined in good faith that the Company has a bona fide business reason
for such delay.
In connection with such Underwritten Offering, the Company shall:
(a) enter into such customary agreements and take all other customary
and appropriate actions in order to expedite or facilitate the disposition of
such Registrable Securities, including, but not limited to:
(i) obtain opinions of counsel to the Company and updates thereof
addressed to the selling Holders and the underwriters, if any, covering the
matters set forth in the opinion of such counsel delivered at the Closing Date;
(ii) obtain "comfort" letters and updates thereof from the
Company's independent certified public accountants (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements are, or are
required to be, included in the Shelf Registration Statement) addressed to the
underwriters, if any, and use commercially reasonable efforts to have such
letter addressed to the selling Holders of Registrable Securities (to the extent
consistent with Statement on Auditing Standards No. 72 of the American Institute
of Certified Public Accounts), such letters substantially in the form and
covering the matters covered in the comfort letter delivered on the Closing
Date;
(iii) if an underwriting agreement is entered into, cause the
same to set forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures set forth in Section
4 hereof with respect to the underwriters and all other parties to be
indemnified pursuant to said Section or, at the request of any underwriters, in
the form customarily provided to such underwriters in similar types of
transactions; and
(iv) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings to the Holders
and the managing underwriters, if any;
(b) if reasonably requested in connection with a disposition of
Registrable Securities, make available for inspection during business hours by
representatives of the Holders of the Registrable Securities, any underwriters
participating in any disposition pursuant to a Shelf Registration Statement and
any counsel or accountant retained by any of the foregoing, all financial and
other records, pertinent corporate documents and properties of the Company
reasonably
-14-
requested by any such persons, and cause the respective officers, directors,
employees, and any other agents of the Company to supply all information
reasonably requested by any such representative, underwriter, special counsel or
accountant in connection with a Shelf Registration Statement, and make such
representatives of the Company available for discussion of such documents as
shall be reasonably requested by the Holders, in each case as is customary for
"due diligence" investigations; provided that, to the extent the Company, in its
reasonable discretion, agrees to disclose material non-public information, such
persons shall first agree in writing with the Company that any such non-public
information shall be kept confidential by such persons and shall be used solely
for the purposes of exercising rights under this Agreement and such person shall
not engage in trading any securities of the Company until such material
non-public information becomes properly publicly available, unless (i)
disclosure of such information is required by court or administrative order or
is necessary to respond to inquires of regulatory authorities, (ii) disclosure
of such information is required by law (including any disclosure requirements
pursuant to federal securities laws in connection with the filing of any
Registration Statement or the use of any Prospectus referred to in this
Agreement upon a customary opinion of counsel for such persons delivered and
reasonably satisfactory to the Company), (iii) such information becomes
generally available to the public other than as a result of a disclosure or
failure to safeguard by any such person, (iv) such information becomes available
to any such person from a source other than the Company and such source is not
bound by a confidentiality agreement, or (v) such non-public information ceases
to be material; and provided further, that the foregoing inspection and
information gathering shall, to the greatest extent possible, be coordinated on
behalf of the Holders and the other parties entitled thereto by special counsel
to the Holders; and
(c) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter and its counsel (including any "qualified independent underwriter"
that is required to be retained in accordance with the rules and regulations of
the NASD).
6. Miscellaneous.
6.1 Market Stand-Off Agreement. If requested by the Company and an
underwriter of Common Stock (or other securities) of the Company, no Holder
shall sell or otherwise transfer, make any short sale of, grant any option for
the purchase of, or enter into any hedging or similar transaction with the same
economic effect as a sale, of any Common Stock (or other securities) of the
Company held by such Holder (other than those included in the registration)
during the one hundred eighty (180) day period following the effective date of a
Registration Statement of the Company filed under the Securities Act with
respect to a firm commitment public offering. The obligations described in this
Section 6.1 shall not apply to a registration relating solely to employee
benefit plans or similar forms that may be promulgated in the future, or a
registration relating solely to a transaction on Form S 4 or similar forms that
may be promulgated in the future. The Company may impose stop-transfer
instructions subject to the foregoing restriction until the end of such one
hundred eighty (180) day period. Each Holder agrees to execute a market standoff
agreement with said underwriters in customary form consistent with the
provisions of this Section 6.1; provided, however, that such Holder shall not be
obligated to execute such market stand-off agreement unless (i) all other
holders of Common Stock (or other securities) holding the same or a greater
percentage of Common Stock (or other securities) execute and agree to be bound
-15-
by substantially the same form and (ii) all officers and directors of the
Company execute and agree to be bound by substantially the same form.
6.2 No Inconsistent Agreements. The Company has not entered into and
the Company will not after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not and will not for the term of
this Agreement in any way conflict with the rights granted to the holders of the
Company's other issued and outstanding securities under any such agreements.
6.3 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Majority
Holders (assuming conversion of all Securities into Common Stock) affected by
such amendment, modification, supplement, waiver or departure. Notwithstanding
the foregoing, this Agreement may be amended by a written agreement between the
Company and the Majority Holders, in order to cure any ambiguity or to correct
or supplement any provision contained herein, provided that no such amendment
shall adversely affect the interest of the Holders of Registrable Securities.
Each Holder of Registrable Securities outstanding at the time of any amendment,
modification, waiver or consent pursuant to this Section 6.3, shall be bound by
such amendment, modification, waiver or consent, whether or not any notice or
writing indicating such amendment, modification, waiver or consent is delivered
to such Holder.
6.4 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, facsimile, or any courier guaranteeing overnight delivery (a)
if to a Holder, at the most current address given by such Holder to the Company
by means of a notice given in accordance with the provisions of this Section
6.4, which address initially is the address set forth in the Purchase Agreement
with respect to such Holder; and (b) if to the Company, initially at the
Company's address set forth in the Purchase Agreement, and thereafter at such
other address of which notice is given in accordance with the provisions of this
Section 6.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business days
after being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged, if sent by facsimile; and on the next business day if timely
delivered to an overnight courier.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture, at the address specified in such Indenture.
6.5 Successor and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees 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 Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of
-16-
any Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding such
Registrable 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 or the Indenture, and such person shall be
entitled to receive the benefits hereof.
6.6 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.
6.7 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
6.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
6.9 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.
6.10 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 by the Issuer with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
[Remainder of page intentionally left blank].
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IN WITNESS WHEREOF, the parties have executed this Investors Rights
Agreement as of the date first written above.
AMKOR TECHNOLOGY, INC.
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Exec. VP and CFO
Confirmed and accepted as of the date first above written:
INVESTOR:
/s/ Xxxxx X. Xxx
----------------------------------------
Xxxxx X. Xxx
[Signature page for Investors Rights Agreement]
INVESTOR:
/s/ Xxxxx X. Xxx
----------------------------------------
The Xxxxx and Xxxxx Xxx Foundation, Inc.
By: Xxxxx X. Xxx
Title: President
[Signature page for Investors Rights Agreement]
INVESTOR:
/s/ Xxxx X. Xxx
----------------------------------------
Trust U/D of Xxxxx X. Xxx dated 12/24/92
f/b/o Alexandra Xxx Xxxxxxxxxx
By: Xxxx X. Xxx
Title: Trustee
[Signature page for Investors Rights Agreement]
INVESTOR:
/s/ Xxxx X. Xxx
----------------------------------------
Trust U/D of Xxxxx X. Xxx dated 10/3/94
f/b/o Xxxxxxxxxx Xxxx Xxxxxxxxxx
By: Xxxx X. Xxx
Title: Trustee
[Signature page for Investors Rights Agreement]
INVESTOR:
/s/ Xxxx X. Xxx
----------------------------------------
Trust U/D of Xxxxx X. Xxx dated 10/15/01
f/b/o Dylan Xxxxx Xxxxxxxxxx
By: Xxxx X. Xxx
Title: Trustee
[Signature page for Investors Rights Agreement]
INVESTOR:
/s/ Xxxx X. Xxx
----------------------------------------
Trust U/D of Xxxxx X. Xxx dated 10/15/01
f/b/o Xxxxxxx Xxx Xxx
By: Xxxx X. Xxx
Title: Trustee
[Signature page for Investors Rights Agreement]
INVESTOR:
/s/ Xxxx X. Xxx
----------------------------------------
Trust U/D of Xxxxx X. Xxx dated 11/17/03
f/b/o Xxxxx Xxx Xxx
By: Xxxx X. Xxx
Title: Trustee
[Signature page for Investors Rights Agreement]
INVESTOR:
/s/ Xxxx X. Xxx
----------------------------------------
Trust U/D of Xxxxx X. Xxx dated 11/11/05
f/b/o Children of Xxxxx X. Xxx
By: Xxxx X. Xxx
Title: Trustee
[Signature page for Investors Rights Agreement]
EXHIBIT D
FORM OF VOTING AGREEMENT
