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Exhibit 4.6
AMKOR TECHNOLOGY, INC.
5% Convertible Subordinated Notes due 2007
REGISTRATION AGREEMENT
New York, New York
March 22, 2000
Xxxxxxx Xxxxx Xxxxxx Inc.
As Representative of the Initial Purchasers Named in
Schedule I to the Purchase Agreement (as defined below)
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Amkor Technology, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell (such issuance and sale, the "Initial Placement") to
the several parties named in Schedule I to the Purchase Agreement (the "Initial
Purchasers") for whom you (the "Representative") are acting as representative,
upon the terms set forth in a purchase agreement dated March 16, 2000 (the
"Purchase Agreement"), $225,000,000 aggregate principal amount (plus up to an
additional $33,750,000 aggregate principal amount to cover over-allotments, if
any) of its 5% Convertible Subordinated Notes due 2007 (the "Securities"). The
Securities will be convertible into shares of Common Stock (as defined herein),
at the conversion price set forth in the Offering Memorandum (as defined
herein), as the same may be adjusted from time to time pursuant to the Indenture
(as defined herein) referred to below. As an inducement to you to enter into the
Purchase Agreement and in satisfaction of a condition to your obligations
thereunder, the Company agrees with you, (i) for your benefit and (ii) for the
benefit of the holders from time to time of the Securities and the Common Stock
issuable upon conversion of the Securities (including you), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have the respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized terms shall have the following
meanings:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
"Affiliate" of any specified person means any other person, directly or
indirectly, controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control
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with"), as used with respect to any person, shall mean the possession, directly
or indirectly, of the power either (a) to direct or cause the direction of the
management or policies of such person, whether in the case of each of (a) and
(b), through the ownership of voting securities or by agreement or otherwise or
(b) to vote 10% or more of the securities having ordinary voting power for the
election of director of such person.
"Business Day" has the meaning set forth in the Indenture.
"Closing Date" means March 22, 2000.
"Common Stock" means the common stock, par value $.001 per share, of
the Company, as it exists on the date of this Agreement and any other shares of
capital stock or other securities of the Company into which such Common Stock
may be reclassified or changed, together with any and all other securities which
may from time to time be issuable upon conversion of Securities.
"Damages Payment Date" means, with respect to the Securities or the
Common Stock issuable upon conversion thereof, as applicable, each Interest
Payment Date; and in the event that any Security, or portion thereof, is called
for redemption or surrendered for purchase by the Company and not withdrawn
pursuant to a Designated Event Offer (as defined in the Indenture), a
Provisional Redemption (as defined in the Indenture) or a Special Event
Redemption (as defined in the Indenture), the relevant redemption date,
Designated Event Payment Date (as defined in the Indenture), Provisional
Redemption Date (as defined in the Indenture) or Special Redemption Date (as
defined in the Indenture) as the case may be, shall also be a Damages Payment
Date with respect to such Security, or portion thereof, unless the Indenture
provides that accrued and unpaid interest on the Security (or portion thereof)
to be redeemed or repurchased, as the case may be, is to be paid to the person
who was the Holder thereof on a record date prior to such redemption date,
Provisional Redemption Date, Special Redemption Date or Designated Event Payment
Date, as the case may be, in which case the Damages Payment Date shall be the
date on which interest is payable to such Record Holder.
"Default Rate" means the rate of interest payable with respect to
overdue amounts on the Securities pursuant to Section 4.01 of the Indenture.
"DTC" has the meaning set forth in Section 3(k) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Final Maturity Date" means March 15, 2007.
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"Holder" means a person who is a holder or beneficial owner (including
the Initial Purchasers) of any Securities or shares of Common Stock issued upon
conversion of Securities; provided that, unless otherwise expressly stated
herein, only registered holders of Securities or Common Stock issued on
conversion thereof shall be counted for purposes of calculating any proportion
of holders entitled to take any action or give notice pursuant to this
Agreement.
"Indenture" means the Indenture relating to the Securities dated as of
March 22, 2000, between the Company and State Street Bank and Trust Company, as
trustee, as the same may be amended from time to time in accordance with the
terms thereof.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Initial Purchasers" has the meaning set forth in the preamble hereto.
"Interest Payment Date" shall mean each September 15 and March 15.
"Liquidated Damages" has the meaning set forth in Section 2(e) hereof.
"Majority Holders" means the Holders of a majority of the then
outstanding aggregate principal amount of Securities registered under a Shelf
Registration Statement; provided that Holders of Common Stock issued upon
conversion of Securities shall be deemed to be Holders of the aggregate
principal amount of Securities from which such Common Stock was converted; and
provided, further, that Securities or Common Stock which have been sold or
otherwise transferred pursuant to the Shelf Registration Statement shall not be
included in the calculation of Majority Holders.
"Majority Underwriting Holders" means, with respect to any Underwritten
Offering, the Holders of a majority of the then outstanding aggregate principal
amount of Securities registered under any Shelf Registration Statement whose
Securities are or are to be included in such Underwritten Offering; provided
that Holders of Common Stock issued upon conversion of Securities shall be
deemed to be Holders of the aggregate principal amount of Securities from which
such Common Stock was converted.
"Managing Underwriters" means the Underwriter or Underwriters that
shall administer an Underwritten Offering.
"NASD" has the meaning set forth in Section 3(i) hereof.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
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"Offering Memorandum" means the Final Memorandum as defined in the
Purchase Agreement.
"Person" and "person" have the meaning set forth in the Indenture.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or Common Stock issuable upon
conversion thereof covered by such Shelf Registration Statement, and all
amendments and supplements to such prospectus, including all documents
incorporated or deemed to be incorporated by reference in such prospectus.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
"Record Holder" means (i) with respect to any Damages Payment Date
which occurs on an Interest Payment Date, each person who is registered on the
books of the registrar as the holder of Securities at the close of business on
the record date with respect to such Interest Payment Date and (ii) with respect
to any Damages Payment Date relating to the Common Stock issued upon conversion
thereof, each person who is a holder of record of such Common Stock fifteen days
prior to the Damages Payment Date.
"Registration Default" has the meaning set forth in Section 2(e)
hereof.
"Representative" has the meaning set forth in the preamble thereto.
"Rule 144" means Rule 144 (or any successor provision) under the Act.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to Section
2 hereof.
"Shelf Registration Period" has the meaning set forth in Section 2(c)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement
of the Company pursuant to the provisions of Section 2 hereof which covers all
of the Securities and the Common Stock issuable upon conversion thereof, as
applicable, on Form S-3 or on another appropriate form for an offering to be
made on a delayed or continuous basis pursuant to Rule 415 under the Act, or any
similar rule that may be adopted by the SEC,
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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 documents incorporated or deemed to be
incorporated by reference therein.
"Suspension Period" has the meaning set forth in Section 2(d) hereof.
"Transfer Restricted Securities" means each Security and each share of
Common Stock issuable or issued upon conversion thereof until the date on which
such Security or share of Common Stock, as the case may be, (i) has been
transferred pursuant to the Shelf Registration Statement or another registration
statement covering such Security or share of Common Stock which has been filed
with the SEC pursuant to the Act, in either case after such registration
statement has become effective and while such registration statement is
effective under the Act, (ii) has been transferred pursuant to Rule 144 under
the Act (or any similar provision then in force) or (iii) may be sold or
transferred pursuant to Rule 144(k) under the Act (or any successor provision
then in force).
"Trustee" means the trustee with respect to the Securities under the
Indenture.
"Underwriter" means any underwriter of Securities or Common Stock
issuable upon conversion thereof in connection with an offering thereof under a
Shelf Registration Statement.
"Underwritten Offering" means an offering in which the Securities or
Common Stock issued upon conversion thereof are sold to an Underwriter or with
the assistance of an Underwriter for reoffering to the public.
All references in this Agreement to financial statements and schedules
and other information which is "contained", "included", or "stated" in the Shelf
Registration Statement, any preliminary Prospectus or Prospectus (and all other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
or deemed to be incorporated by reference in such Shelf Registration Statement,
preliminary Prospectus or Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Shelf Registration Statement,
any preliminary Prospectus or Prospectus shall be deemed to mean and include the
filing of any document under the Exchange Act, after the date of such Shelf
Registration Statement, preliminary Prospectus or Prospectus, as the case may
be, which is incorporated or deemed to be incorporated by reference therein.
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2. Shelf Registration Statement.
(a) The Company shall prepare and, not later than 90 days following the
Closing Date, shall file with the SEC a Shelf Registration Statement with
respect to resales of the Securities and the Common Stock issuable upon
conversion thereof by the Holders from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement and thereafter shall use its best efforts to cause such
Shelf Registration Statement to be declared effective under the Act within 180
days after the Closing Date; provided that if any Securities are issued upon
exercise of the over-allotment option granted to the Initial Purchasers in the
Purchase Agreement and the date on which such Securities are issued occurs after
the Closing Date, the Company will take such steps, prior to the effective date
of the Shelf Registration Statement, to ensure that such Securities and Common
Stock issuable upon conversion thereof are included in the Shelf Registration
Statement on the same terms as the Securities issued on the Closing Date. The
Company shall supplement or amend the Shelf Registration Statement if required
by the rules, regulations or instructions applicable to the registration form
used by the Company for the Shelf Registration Statement, if required by the
Act, the Exchange Act or the SEC.
(b) (1) Not less than 30 calendar days prior to the effectiveness of
the Shelf Registration Statement, the Company shall mail the Notice and
Questionnaire to the Holders of Securities and Common Stock issued upon
conversion thereof. No Holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement, and no Holder shall be
entitled to use the Prospectus forming a part thereof for resales of Securities
or Common Stock issued upon conversion thereof at any time, unless such Holder
has returned a completed and signed Notice and Questionnaire to the Company by
the deadline for responses set forth therein; provided, however, that Holders of
Securities or Common Stock issued upon conversion thereof shall have at least 20
calendar days from the date on which the Notice and Questionnaire is first
mailed to such Holders to return a completed and signed Notice and Questionnaire
to the Company.
(2) After the Shelf Registration Statement has become
effective, the Company shall, upon the request of any Holder of Securities or
Common Stock issued or issuable upon conversion thereof that has not returned a
completed Notice and Questionnaire, promptly send a Notice and Questionnaire to
such Holder. The Company shall not be required to take any action to name such
Holder as a selling securityholder in the Shelf Registration Statement or to
enable such Holder to use the Prospectus forming a part thereof for resales of
Securities or Common Stock issued or issuable upon conversion thereof until such
Holder has returned a completed and signed Notice and Questionnaire to the
Company, whereupon the Company will be required to take such action.
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(c) The Company shall keep the Shelf Registration Statement
continuously effective under the Act in order to permit the Prospectus forming a
part thereof to be usable by all Holders until the earliest of (i) the second
anniversary of the Closing Date or, if later, the second anniversary of the last
date on which any Securities are issued upon exercise of the Initial Purchasers'
over-allotment option, (ii) the date on which all the Securities and Common
Stock issued or issuable upon conversion thereof may be sold by non-affiliates
("affiliates" for such purpose having the meaning set forth in Rule 144) of the
Company pursuant to paragraph (k) of Rule 144 (or any successor provision)
promulgated by the SEC under the Act, (iii) the date as of which all the
Securities and Common Stock issued or issuable upon conversion thereof have been
transferred pursuant to Rule 144 under the Securities Act (or any similar
provision then in force) and (iv) such date as of which all the Securities and
the Common Stock issued or issuable upon conversion thereof have been sold
pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period"). The Company will, subject to
Section 2(d), prepare and file with the SEC such amendments and post-effective
amendments to the Shelf Registration Statement as may be necessary to keep the
Shelf Registration Statement continuously effective for the Shelf Registration
Period; subject to Section 2(d), cause the related Prospectus to be supplemented
by any required supplement, and as so supplemented to be filed pursuant to Rule
424 (or any similar provisions then in force) under the Act; and, comply in all
material respects with the provisions of the Act with respect to the disposition
of all securities covered by the Shelf Registration Statement during the
applicable period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Shelf Registration Statement as so amended or
such Prospectus as so supplemented.
(d) The Company may suspend the use of the Prospectus for a period not
to exceed 30 days in any three-month period or for three periods not to exceed
an aggregate of 90 days in any 12-month period (the "Suspension Period") for
valid business reasons, to be determined by the Company in its sole reasonable
judgment (not including avoidance of the Company's obligations hereunder),
including, without limitation, the acquisition or divestiture of assets, public
filings with the SEC, pending corporate developments and similar events;
provided that the Company promptly thereafter complies with the requirements of
Section 3(j) hereof, if applicable; provided, that the existence of a Suspension
Period will not prevent the occurrence of a Registration Default or otherwise
limit the obligation of the Company to pay Liquidated Damages. The Company shall
provide notice to the Holders of a Suspension Period as required under Section
3(c)(1)(iv) hereof.
(e) If (i) the Shelf Registration Statement is not filed with the SEC
on or prior to 90 days after the Closing Date, (ii) the Shelf Registration
Statement has not been declared effective by the SEC within 180 days after the
Closing Date, or (iii) the Shelf Registration Statement is filed and declared
effective but shall thereafter cease to be
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effective (without being succeeded immediately by a replacement shelf
registration statement filed and declared effective) or usable (including as a
result of a Suspension Period) for the offer and sale of Transfer Restricted
Securities for a period of time (including any Suspension Period) which shall
exceed 60 days in the aggregate in any 12-month period during the period
beginning on the Closing Date and ending on the second anniversary of the
Closing Date or, if later, the second anniversary of the last date on which any
Securities are issued upon exercise of the Initial Purchasers' over-allotment
option (each such event referred to in clauses (i) through (iii), a
"Registration Default"), the Company will pay liquidated damages ("Liquidated
Damages") to each Holder of Transfer Restricted Securities who has complied with
such Holder's obligations under this Agreement. The amount of Liquidated Damages
payable during any period in which a Registration Default has occurred and is
continuing is the amount which is equal to one-quarter of one percent (25 basis
points) per annum per $1,000 principal amount of Securities and $2.50 per annum
per 17.4398 shares of Common Stock (subject to adjustment in the event of a
stock split, stock recombination, stock dividend and the like) constituting
Transfer Restricted Securities for the first 90 days during which a Registration
Default has occurred and is continuing and one-half of one percent (50 basis
points) per annum per $1,000 principal amount of Securities and $5.00 per annum
per 17.4398 shares of Common Stock (subject to adjustment as set forth above)
constituting Transfer Restricted Securities for any additional days during which
a Registration Default has occurred and is continuing (in each case subject to
further adjustment from time to time in the event of a stock split, stock
recombination, stock dividend and the like), it being understood that all
calculations pursuant to this and the preceding sentence shall be carried out to
five decimals. Following the cure of all Registration Defaults, Liquidated
Damages will cease to accrue with respect to such Registration Default. All
accrued Liquidated Damages shall be paid by wire transfer of immediately
available funds or by federal funds check by the Company on each Damages Payment
Date and Liquidated Damages will be calculated on the basis of a 360-day year
consisting of twelve 30-day months. In the event that any Liquidated Damages are
not paid when due, then to the extent permitted by law, such overdue Liquidated
Damages, if any, shall bear interest until paid at the Default Rate, compounded
semi-annually. The parties hereto agree that the Liquidated Damages provided for
in this Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders by reason of a Registration Default.
(f) All of the Company's obligations (including, without limitation,
the obligation to pay Liquidated Damages) set forth in the preceding paragraph
which are outstanding or exist with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such security
shall have been satisfied in full.
(g) Immediately upon the occurrence or the termination of a
Registration Default, the Company shall give the Trustee, in the case of notice
with respect to the
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Securities, and the transfer and paying agent for the Common Stock, in the case
of notice with respect to Common Stock issued or issuable upon conversion
thereof, notice of such commencement or termination, of the obligation to pay
Liquidated Damages with regard to the Securities and Common Stock and the amount
thereof and of the event giving rise to such commencement or termination (such
notice to be contained in an Officers' Certificate (as such term is defined in
the Indenture)), and prior to receipt of such Officers' Certificate the Trustee
and such transfer and paying agent shall be entitled to assume that no such
commencement or termination has occurred, as the case may be.
(h) All Securities which are redeemed, purchased or otherwise acquired
by the Company or any of its subsidiaries or affiliates (as defined in Rule 144
(or any successor provision) under the Act) prior to the Final Maturity Date
shall be delivered to the Trustee for cancellation and the Company may not hold
or resell such Securities or issue any new Securities to replace any such
Securities or any Securities that any Holder has converted pursuant to the
Indenture. All shares of Common Stock issued upon conversion of the Securities
which are repurchased or otherwise acquired by the Company or any of its
subsidiaries or affiliates (as defined in Rule 144 (or any successor provision)
under the Act) at any time while such shares are "restricted securities" within
the meaning of Rule 144 shall not be resold or otherwise transferred except
pursuant to a registration statement which has been declared effective under the
Act.
3. Registration Procedures. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Company shall furnish to you, prior to the filing
thereof with the SEC, a copy of any Shelf Registration Statement, and
each amendment thereof (excluding amendments caused by the filing by
the Company with the SEC of a report required by the Exchange Act), a
copy of any Prospectus, and each amendment or supplement, if any, to
the Prospectus included therein and shall use its reasonable efforts to
reflect in each such document, when so filed with the SEC, such
comments as Xxxxxxx Xxxxx Barney Inc. reasonably may propose. Xxxxxxx
Xxxxx Xxxxxx Inc. shall promptly furnish to the Company any comments it
may have to such documents mentioned in the foregoing sentence.
(b) The Company shall ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part
thereof and any amendment or supplement thereto comply in all material
respects with the 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
amendment
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or supplement to such Prospectus, 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; provided that the Company makes
no representation or agreement with respect to information with respect
to you, any Underwriter or any Holder required to be included in any
Shelf Registration or Prospectus pursuant to the Act or the rules and
regulations thereunder and which information is included therein in
reliance upon and in conformity with information furnished to the
Company in writing by you, any Underwriter or any such Holder.
(c) (1) The Company, as promptly as reasonably practicable,
shall advise you and each Holder that has returned a completed and
signed Notice and Questionnaire to the Company and, if requested by you
or any such Holder, confirm such advice in writing:
(i) when a Shelf Registration Statement and any
amendment thereto has been filed with the SEC and when the
Shelf Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the SEC for amendments or
supplements to the Shelf Registration Statement or the
Prospectus or for additional information;
(iii) of the determination by the Company that a
post-effective amendment to the Shelf Registration Statement
would be appropriate; and
(iv) of the commencement or termination of any
Suspension Period.
(2) The Company shall advise you and each Holder that
has returned a completed and signed Notice and Questionnaire to the
Company and, if requested by you or any such Holder, confirm such
advice in writing:
(i) of the issuance by the SEC of any stop order
suspending the effectiveness of the Shelf Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities included in any Shelf
Registration Statement for sale in any jurisdiction or the
initiation or threat of any proceeding for such purpose; and
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(iii) of the suspension of the use of the Prospectus
pursuant to Section 2(d) hereof or of the happening of any
event that requires the making of any changes in the Shelf
Registration Statement or the Prospectus so that, as of such
date, the statements therein are not misleading and the Shelf
Registration Statement or the Prospectus, as the case may be,
does not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they
were made) not misleading (which advice shall be accompanied
by an instruction to suspend the use of the Prospectus until
the requisite changes have been made).
(d) The Company shall use its reasonable best efforts to
obtain the withdrawal of any order suspending the effectiveness of any
Shelf Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the
Securities for offer or sale in any jurisdiction at the earliest
possible time.
(e) The Company shall furnish to each Holder of Securities and
the Common Stock issued upon conversion thereof included within the
coverage of any Shelf Registration Statement, without charge, at least
one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and,
if the Holder so requests in writing, all exhibits (including those
incorporated by reference).
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities or the Common Stock issued upon
conversion thereof included within the coverage of any Shelf
Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request; and, except during the continuance
of any Suspension Period, the Company consents to the use of the
Prospectus or any amendment or supplement thereto by each of the
selling Holders in connection with the offering and sale of the
Securities or the Common Stock issued upon conversion thereof covered
by the Prospectus or any amendment or supplement thereto.
(g) Prior to any offering of Securities or the Common Stock
issued upon conversion thereof pursuant to any Shelf Registration
Statement, the Company shall register or qualify or cooperate with the
Holders of Securities and the Common Stock issued upon conversion
thereof included therein and their respective counsel in connection
with the registration or qualification (or
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exemption from such registration or qualification) of such Securities
or Common Stock for offer and sale, as the case may be, under the
securities or blue sky laws of such jurisdictions as any such Holders
reasonably request in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities and the Common Stock issued upon
conversion thereof covered by such Shelf Registration Statement;
provided, however, that the Company will not be required to (A) qualify
generally to do business as a foreign corporation or as a dealer in
securities in any jurisdiction where it is not then so qualified or to
(B) take any action which would subject it to general service of
process or to taxation in any such jurisdiction where it is not then so
subject.
(h) The Company shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing
Securities or the Common Stock issued upon conversion thereof to be
sold pursuant to any Shelf Registration Statement free of any
restrictive legends and in such denominations and registered in such
names as Holders may request prior to sales of Securities or the Common
Stock issued upon conversion thereof pursuant to such Shelf
Registration Statement.
(i) Subject to the exceptions contained in (A) and (B) of
subsection (g) hereof, the Company shall use its best efforts to cause
the Securities and Common Stock issued upon conversion thereof covered
by the applicable Shelf Registration Statement to be registered with or
approved by such other federal, state and local governmental agencies
or authorities, and self-regulatory organizations in the United States
as may be necessary to enable the Holders to consummate the disposition
of such Securities and Common Stock issued upon conversion thereof as
contemplated by the Shelf Registration Statement; without limitation to
the foregoing, the Company shall make all filings and provide all such
information as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") in connection with the offering
under the Shelf Registration Statement of the Securities and Common
Stock issued upon conversion thereof (including, without limitation,
such as may be required by NASD Rule 2710 or 2720), and shall cooperate
with each Holder in connection with any filings required to be made
with the NASD by such Holder in that regard.
(j) Upon the occurrence of any event contemplated by paragraph
3(c)(2)(iii) above and subject to Section 3(a) hereof, the Company
shall promptly prepare and file with the SEC a post-effective amendment
to any Shelf Registration Statement or an amendment or supplement to
the related Prospectus or any document incorporated therein by
reference or file a document which is
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incorporated or deemed to be incorporated by reference in such Shelf
Registration Statement or Prospectus, as the case may be, so that, as
thereafter delivered to purchasers of the Securities or the Common
Stock issued upon conversion thereof included therein, the Shelf
Registration Statement and the Prospectus, in each case as then amended
or supplemented, will not include an untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein (in the case of
the Prospectus in light of the circumstances under which they were
made) not misleading and in the case of a post-effective amendment, use
reasonable efforts to cause it to become effective as promptly as
practicable; provided that the Company's obligations under this
paragraph (j) shall be suspended if the Company has suspended the use
of the Prospectus in accordance with Section 2(d) hereof and given
notice of such suspension to Holders, it being understood that the
Company's obligations under this Subsection (j) shall be automatically
reinstated at the end of such Suspension Period.
(k) The Company shall use its reasonable best efforts to cause
The Depository Trust Company ("DTC") on the first Business Day
following the effective date of any Shelf Registration Statement
hereunder or as soon as possible thereafter to remove (i) from any
existing CUSIP number assigned to the Securities any designation
indicating that the Securities are "restricted securities", which
efforts shall include delivery to DTC of a letter executed by the
Company substantially in the form of Exhibit B hereto and (ii) any
other stop or restriction on DTC's system with respect to the
Securities. In the event the Company is unable to cause DTC to take
actions described in the immediately preceding sentence, the Company
shall take such actions as Xxxxxxx Xxxxx Xxxxxx Inc. may reasonably
request to provide, as soon as practicable, a CUSIP number for the
Securities registered under such Shelf Registration Statement and to
cause such CUSIP number to be assigned to such Securities (or to the
maximum aggregate principal amount of the Securities to which such
number may be assigned). Upon compliance with the foregoing
requirements of this Section 3(k), the Company shall provide the
Trustee with global certificates for such Securities in a form eligible
for deposit with DTC.
(l) The Company shall use its best efforts to comply with all
applicable rules and regulations of the SEC and shall make generally
available to its security holders as soon as practicable but in any
event not later than 15 months after (i) the effective date of the
applicable Shelf Registration Statement, (ii) the effective date of
each post-effective amendment to any Shelf Registration Statement, and
(iii) the date of each filing by the Company with the SEC of an Annual
Report on Form 10-K that is incorporated by reference or deemed to be
incorporated by reference in the Shelf Registration Statement, an
earnings
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statement satisfying the provisions of Section 11(a) of the Act and
Rule 158 promulgated by the SEC thereunder.
(m) The Company shall use reasonable efforts to cause the
Indenture to be qualified under the TIA (as defined in the Indenture)
in a timely manner.
(n) The Company shall cause all Common Stock issued or
issuable upon conversion of the Securities to be listed on each
securities exchange or quotation system on which the Common Stock is
then listed no later than the date the applicable Shelf Registration
Statement is declared effective and, in connection therewith, to make
such filings as may be required under the Exchange Act and to have such
filings declared effective as and when required thereunder.
(o) The Company may require each Holder of Securities or the
Common Stock issued upon conversion thereof to be sold pursuant to any
Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of such Securities or Common
Stock sought by the Notice and Questionnaire and such additional
information as may, from time to time, be required by the Act and the
rules and regulations promulgated thereunder, and the obligations of
the Company to any Holder hereunder shall be expressly conditioned on
the compliance of such Holder with such request.
(p) The Company shall, if reasonably requested, use reasonable
efforts to promptly incorporate in a Prospectus supplement or
post-effective amendment to a Shelf Registration Statement (i) such
information as the Majority Holders provide or, if the Securities or
Common Stock are being sold in an Underwritten Offering, as the
Managing Underwriters or the Majority Underwriting Holders reasonably
agree should be included therein and provide to the Company in writing
for inclusion in the Shelf Registration Statement or Prospectus, and
(ii) such information as a Holder may provide from time to time to the
Company in writing for inclusion in a Prospectus or any Shelf
Registration Statement concerning such Holder and the distribution of
such Holder's Securities and Common Stock and, in either case, shall
make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after being notified in
writing of the matters to be incorporated in such Prospectus supplement
or post-effective amendment, provided that the Company shall not be
required to take any action under this Section 3(p) that is not, in the
reasonable opinion of counsel for the Company, in compliance with
applicable law.
(q) The Company shall enter into such customary agreements
(including underwriting agreements) and take all other appropriate
actions as may be reasonably requested in order to expedite or
facilitate the registration or the
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disposition of the Securities or the Common Stock issued or issuable
upon conversion thereof, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification and contribution provisions and procedures no less
favorable than those set forth in Section 5 (or such other reasonable
and customary provisions and procedures acceptable to the Majority
Underwriting Holders and the Managing Underwriters, if any, with
respect to all parties to be indemnified pursuant to Section 5). The
plan of distribution in the Shelf Registration Statement and the
Prospectus included therein shall permit resales of the Securities or
Common Stock issuable upon conversion thereof to be made by selling
security holders through underwriters, brokers and dealers, and shall
also include such other information as Xxxxxxx Xxxxx Xxxxxx Inc. may
reasonably request.
(r) The Company shall (i) make reasonably available for
inspection by any Underwriter participating in any disposition pursuant
to such Shelf Registration Statement, and any attorney, accountant or
other agent retained by any such Underwriter all relevant financial and
other records, pertinent corporate documents and properties of the
Company and its subsidiaries as is customary for due diligence
examinations in connection with public offerings; (ii) cause the
Company's officers, directors and employees to supply all relevant
information reasonably requested by any such Underwriter, attorney,
accountant or agent in connection with any such Shelf Registration
Statement as is customary for similar due diligence examinations;
provided, however, that any information that is designated in writing
by the Company, in its sole discretion, as confidential at the time of
delivery of such information shall be kept confidential by the Holders
or any such Underwriter, attorney, accountant or agent, unless
disclosure thereof is made in connection with a court, administrative
or regulatory proceeding or required by law, or such information has
become available to the public generally through the Company or through
a third party without an accompanying obligation of confidentiality;
provided, further, that if the foregoing inspection and information
gathering specified in subsections (i) and (ii) would, in the Company's
reasonable judgment, disrupt the Company's conduct of business, such
inspections and information gathering shall be coordinated on behalf of
the Holders and the other parties entitled thereto by one counsel
designated by or on behalf of the Majority Holders (or, in the case of
an Underwritten Offering, the Majority Underwriting Holders and the
Managing Underwriters); (iii) deliver a letter, addressed to the
Holders of Securities and Common Stock issued upon conversion thereof
and the Underwriters, if any, in which the Company shall make such
representations and warranties in form, substance and scope as are
customarily made by issuers to Underwriters; (iv) obtain opinions of
counsel to the Company and updates thereof (which counsel and opinions,
in form, scope and substance, shall be reasonably satisfactory to the
Managing Underwriters, if
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any) addressed to each selling Holder and the Underwriters, if any,
covering such matters as are customarily covered in opinions requested
in public offerings; (v) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the
Company (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 and financial
data are, or are required to be, included in the Shelf Registration
Statement), addressed to each selling Holder of Securities and Common
Stock issued upon conversion thereof registered thereunder (provided
such Holder furnishes the accountants, prior to the date such "cold
comfort" letter is required to be delivered, with such representations
as the accountants customarily require in similar situations) and the
Underwriters, if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and (vi) deliver such documents and
certificates as may be reasonably requested by the Majority Holders or,
in the case of an Underwritten Offering, the Majority Underwriting
Holders, and the Managing Underwriters, if any, including those to
evidence compliance with Section 3(j) and with any customary conditions
contained in the underwriting agreement or other agreement entered into
by the Company. The foregoing actions set forth in clauses (iii), (iv),
(v) and (vi) of this Section 3(r) shall be performed at (A) the
effectiveness of such Shelf Registration Statement and each
post-effective amendment thereto and (B) each closing under any
underwriting or similar agreement as and to the extent required
thereunder.
(s) Each Holder agrees that, upon receipt of notice of the
happening of an event described in Sections 3(c)(1)(ii) through and
including 3(c)(1)(iv) and Sections 3(c)(2)(i) through and including
3(c)(2)(iii), each Holder shall forthwith discontinue (and shall cause
its agents and representatives to discontinue) disposition of the
Securities and the Common Stock issuable upon conversion thereof and
will not resume disposition of such Securities or the Common Stock
until such Holder has received copies of an amended or supplemented
Prospectus contemplated by Section 3(j) hereof, or until such Holder is
advised in writing by the Company that the use of the Prospectus may be
resumed or that the relevant Suspension Period has been terminated, as
the case may be, provided that, the foregoing shall not prevent the
sale, transfer or other disposition of Securities or Common Stock
issuable upon conversion thereof by a Holder in a transaction which is
exempt from, or not subject to, the registration requirements of the
Act, so long as such Holder does not and is not required to deliver the
applicable Prospectus or Shelf Registration Statement in connection
with such sale, transfer or other disposition, as the case may be; and
provided, further, that the provisions of this paragraph (s) shall not
prevent the occurrence of a Registration Default or otherwise limit the
obligation of the Company to pay Liquidated Damages.
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4. Registration Expenses. The Company shall bear all expenses incurred
in connection with the performance of its obligations under Sections 2 and 3
hereof and shall reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel designated by the Majority Holders to act as counsel for
the Holders in connection therewith. Notwithstanding the provisions of this
Section 4, each Holder shall bear the expense of any broker's commission, agency
fee or Underwriter's discount or commission.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Holder of Securities and each Holder of Common Stock issued upon
conversion thereof covered by any Shelf Registration Statement
(including the Initial Purchasers), the directors, officers, employees
and agents of each such Holder and each person who controls any such
Holder within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement as originally filed or in
any amendment thereof, or in any preliminary Prospectus or Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses
reasonably incurred by any of them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon (A) any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any such Holder or any Initial Purchaser specifically for
inclusion therein, (B) use of a Shelf Registration Statement or the
related Prospectus during a period when a stop order has been issued in
respect of such Shelf Registration or any proceedings for that purpose
have been initiated or use of a Prospectus when use of such Prospectus
has been suspended pursuant to Section 2(d) or Section 3(s); provided,
further, in each case, that Holders received prior notice of such stop
order, initiation of proceedings or suspension, or (C) if the Holder
fails to deliver a Prospectus, as
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then amended or supplemented, provided that the Company shall have
delivered to such Holder such Prospectus, as then amended or
supplemented. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Holder of Securities or Common Stock issued upon
conversion thereof covered by a Shelf Registration Statement (including
the Initial Purchasers) severally and not jointly agrees to indemnify
and hold harmless (i) the Company, (ii) each of its directors, (iii)
each of its officers and (iv) each person who controls the Company
within the meaning of either the Act or the Exchange Act to the same
extent as the foregoing indemnity from the Company to each such Holder,
but only with reference to written information relating to such Holder
furnished to the Company by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity.
This indemnity agreement will be in addition to any liability which any
such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 5, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and
defenses. The indemnifying party shall be entitled to appoint counsel
of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set
forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party
in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a
conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall
not have employed counsel
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reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action; or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. Notwithstanding the foregoing, the
indemnifying party shall not, in the connection with any one action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate counsel (in addition to one separate
local counsel) at any time for the indemnified party or parties, unless
(x) the employment of more than one counsel has been authorized in
writing by the indemnifying party or parties or (y) a conflict or
potential conflict exists or may exist (based on advice of counsel to
an indemnified party) between such indemnified party and any other
indemnified parties or (z) an indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal defenses
available to it that are different from or in addition to those
available to the other indemnified parties, in each of which cases the
indemnifying party shall be obligated to pay the reasonable fees and
expenses of such additional counsel or counsels. Neither an
indemnifying party nor an indemnified party will, without the prior
written consent of the other parties, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not such other
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional
release of such other parties from all liability arising out of such
claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 5 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party,
shall have an obligation to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
(collectively "Losses"), as incurred, to which such indemnified party
may be subject in such proportion as is appropriate to reflect the
relative benefits received by such indemnifying party, on the one hand,
and such indemnified party, on the other hand, from the Initial
Placement and any sales of Securities under the Shelf Registration
Statement; provided, however, that in no case shall the Initial
Purchasers be responsible, in the aggregate, for any amount in excess
of the purchase discount or commission applicable to the Securities, as
set forth in the Purchase Agreement. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such
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relative benefits but also the relative fault of such indemnifying
party, on the one hand, and such indemnified party, on the other hand,
in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Relative
fault shall be determined by reference to whether any untrue statement
or omission or alleged untrue statement or omission relates to
information provided by the indemnifying party, on the one hand, or by
the indemnified party, on the other hand. The parties agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 5, each person who controls a Holder within the meaning of
either the Act or the Exchange Act and each director, officer, employee
and agent of such Holder shall have the same rights to contribution as
such Holder, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the
Company and each director of the Company shall have the same rights to
contribution as the Company, and each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act
and each officer and director of each Underwriter shall have the same
rights to contribution as such Underwriter, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 5 will remain in full force
and effect, regardless of any investigation made by or on behalf of any
Holder, any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 5 hereof, and
will survive the sale by a Holder of Securities or shares of Common
Stock covered by a Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the
date hereof, entered into nor shall it, on or after the date hereof,
enter into, any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
qualified, 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 the Majority Holders;
provided that with respect to any matter that
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directly or indirectly affects the rights of the Initial Purchasers
hereunder, the Company shall obtain the written consent of each of the
Initial Purchasers against which such amendment, qualification,
supplement, waiver or consent is to be effective. Notwithstanding the
foregoing (except the foregoing proviso), a waiver or consent to
departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities or Common
Stock are being sold pursuant to a Shelf Registration Statement and
that does not directly or indirectly affect the rights of other Holders
may be given by the Majority Holders, determined on the basis of
Securities or Common Stock issued upon conversion thereof being sold
rather than registered under such Shelf Registration Statement.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telecopier, or air courier guaranteeing overnight
delivery:
(1) if to you, initially at the address set forth in the
Purchase Agreement;
(2) if to any other Holder, at the most current address given
by such Holder to the Company in accordance with the provisions of this
Section 6(c), which address initially is, with respect to each Holder,
the address of such Holder maintained by the Registrar under the
Indenture or, in the case of Common Stock, the address maintained by
the registrar of the Common Stock, with a copy in like manner to
Xxxxxxx Xxxxx Xxxxxx Inc.; and
(3) if to the Company, initially at its address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received, if delivered by hand or air courier, and when sent, if sent
by first-class mail or telecopier.
The Initial Purchasers or the Company by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) 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 the need for an express assignment or any consent by the
Company thereto, subsequent Holders. The Company hereby agrees to extend the
benefits of this Agreement to any Holder and Underwriter and any such Holder and
Underwriter may specifically enforce the provisions of this Agreement as if an
original party hereto. In the event that any other person shall succeed to the
Company under the Indenture as provided in Article VII
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thereof, then such successor shall enter into an agreement, in form and
substance reasonably satisfactory to the Initial Purchasers, whereby such
successor shall assume all of the Company's obligations under this Agreement.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED IN SAID STATE, WITHOUT REGARD, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TO THE CONFLICTS OF LAW RULES THEREOF.
(h) Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or the Common Stock issuable upon conversion thereof is required hereunder,
Securities or the Common Stock issued upon conversion thereof held by the
Company or its Affiliates (other than subsequent Holders of Securities or the
Common Stock issued upon conversion thereof if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
AMKOR TECHNOLOGY, INC.
/s/ Xxxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXXX XXXXX BARNEY INC.
By /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Director
For itself and the other Initial
Purchasers named in Schedule I to the
Purchase Agreement.
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EXHIBIT A
Amkor Technology, Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
Reference is hereby made to the Registration Agreement (the
"Registration Agreement") between Amkor Technology, Inc., a Delaware corporation
(the "Company"), and the Initial Purchasers named therein. Pursuant to the
Registration Agreement, the Company has filed or will file with the United
States Securities and Exchange Commission (the "Commission") a registration
statement on Form S-3 (the "Shelf Registration Statement") for the registration
and resale under Rule 415 of the Securities Act of 1933, as amended (the
"Securities Act"), of the Company's 5% Convertible Subordinated Notes due 2007
(the "Securities"), and the shares of the Company's common stock, par value
$.001 per share (the "Common Stock"), issuable upon conversion thereof. A copy
of the Registration Agreement is attached hereto. All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Registration Agreement.
Each holder and beneficial owner of Transfer Restricted Securities is
entitled to have its Transfer Restricted Securities included in the Shelf
Registration Statement. In order to have Transfer Restricted Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the following
address, for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]: [NAME AND ADDRESS OF
COUNSEL]. Holders or beneficial owners of Transfer Restricted Securities who do
not complete, execute and return this Notice and Questionnaire by such date (i)
will not be named as selling securityholders in the Shelf Registration Statement
and (ii) may not use the Prospectus forming a part thereof for resales of
Transfer Restricted Securities, subject, however, to the Company's obligations
under Section 2(b)(2) of the Registration Agreement.
A-1
25
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Transfer Restricted Securities are
advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling securityholder in the Shelf
Registration Statement and related Prospectus.
ELECTION
The undersigned (the "Selling Securityholder") hereby elects to include
in the Shelf Registration Statement the Transfer Restricted Securities held or
beneficially owned by it and listed below in Item (3)(b). The undersigned, by
signing and returning this Notice and Questionnaire, agrees to be bound with
respect to such Transfer Restricted Securities by the terms and conditions of
this Notice and Questionnaire and the Registration Agreement, including, without
limitation, the indemnification set forth in Section 5 of the Registration
Agreement, as if the undersigned Selling Securityholder were an original party
thereto.
QUESTIONNAIRE
(1) (a) Full legal name of Selling Securityholder:
(b) Full legal name of registered holder (if not the same as in (a)
above) of Transfer Restricted Securities listed in (3) below (if the Transfer
Restricted Securities are held through a broker-dealer or other third party and,
as a result, you do not know the legal name of the registered holder, please
complete Item (1)(c) below):
(c) Full legal name of broker-dealer or other third party through which
Transfer Restricted Securities listed in (3) below are held:
(2) Address for notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
A-2
26
(3) Beneficial ownership of Transfer Restricted Securities.
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities or shares of Common Stock which constitute
Transfer Restricted Securities.
(a) Principal amount of Securities constituting Transfer Restricted
Securities beneficially owned:
Number of shares of Common Stock, if any, constituting Transfer
Restricted Securities (include only shares of Common Stock which have actually
been issued, not shares issuable upon future conversion of Securities):
The undersigned also may be deemed to beneficially own such number of
shares of Common Stock as may be issued from time to time upon conversion of the
Securities listed in Item (3)(a) above.
(b) Principal amount of Securities and number of shares of outstanding
Common Stock constituting Transfer Restricted Securities which the undersigned
wishes to be included in the Shelf Registration Statement:
Unless otherwise indicated in the space provided below, all Securities,
all shares of Common Stock listed in response to Item (3)(a) above, and all
shares of Common Stock issuable upon conversion of the Securities listed in
response to Item (3)(b)above, will be included in the Shelf Registration
Statement. If the undersigned does not wish all such Securities or shares of
Common Stock to be so included, please indicate below the number of such shares
to be included:
(4) Beneficial ownership of other securities of the Company:
Except as set forth below in this item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any shares of Common
Stock or any other securities of the Company, other than Securities and shares
of Common Stock listed above in Item (3).
State any exceptions here:
A-3
27
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its officers, directors or 5% or greater stockholders has held any position
or office or has had any other material relationship with the Company (or its
predecessors or affiliates)during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Transfer Restricted Securities listed above in Item
(3) only as follows (if at all): Such Transfer Restricted Securities may be sold
from time to time by the undersigned Selling Securityholder (i) to or through
underwriters, brokers or dealers; (ii) directly to one or more other purchasers;
(iii) through agents on a best-efforts basis or otherwise; or (iv) through a
combination of any such methods of sale. Such Transfer Restricted Securities may
be sold from time to time in one or more transactions at a fixed price or
prices, which may be changed, at market prices prevailing at the time of sale,
at prices related to such prevailing market prices, at varying prices determined
at the time of sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions) (i) on any
national securities exchange or quotation service on which the Transfer
Restricted Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such exchanges
or services or in the over-the-counter market, or (iv) through the writing of
options. In connection with sales of the Transfer Restricted Securities or
otherwise, the Selling Securityholder may enter into hedging transactions with
brokers-dealers or others, which may in turn engage in short sales of the
Transfer Restricted Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Transfer Restricted Securities
short and deliver Transfer Restricted Securities to close out such short
positions, or loan or pledge Transfer Restricted Securities to brokers-dealers
or others that in turn may sell such securities. The Selling Securityholder may
pledge or grant a security interest in some or all of the Transfer Restricted
Securities owned by it and, if it defaults in the performance of its secured
obligations, the pledgees or secured parties may offer and sell the Transfer
Restricted Securities from time to time pursuant to the Prospectus. The Selling
Securityholder also may transfer and donate shares in other circumstances in
which case the transferees, donees, pledgees or other successors in interest
will be the selling stockholders for purposes of the Prospectus. The Selling
Securityholder may sell short the Common Stock and may deliver the Prospectus
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in connection with such short sales and use the shares covered by the Prospectus
to cover such short sales.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, particularly Regulation M and the prospectus delivery
requirements under the Securities Act.
In the event that the Selling Securityholder transfers all or any
portion of the Transfer Restricted Securities listed in Item (3) above after the
date on which such information is provided to the Company (other than a
transaction as a result of which such securities shall no longer be Transfer
Restricted Securities), the Selling Securityholder agrees to notify the
transferees at the time of the transfer of its rights and obligations under this
Notice and Questionnaire and the Registration Agreement.
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through (6)
above and the inclusion of such information in the Shelf Registration Statement
and related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
The Selling Securityholder agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement
remains in effect. All notices hereunder and pursuant to the Registration
Agreement shall be made in writing, by hand-delivery, first-class mail, or air
courier guaranteeing overnight delivery as follows:
Amkor Technology, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Attention: Xxx Xxxxx
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the
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benefit of and shall be enforceable by the respective successors, heirs,
personal representatives, and assigns of the Company and the Selling
Securityholder (with respect to the Transfer Restricted Securities beneficially
owned by such Selling Securityholder and listed in Item (3)(b) above). This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York.
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IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
Selling Securityholder
(Print/type full legal name of beneficial
owner of Transfer Restricted Securities).
By:
-------------------------------------
Name:
Title:
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EXHIBIT B
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
The Depository Trust Company
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: 5% Convertible Subordinated Notes due 2007(the "Securities")
of Amkor Technology, Inc.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission has
declared effective a Registration Statement on Form S-3 under the Securities Act
of 1933, as amended, with regard to all of the Securities referenced above. Any
restrictions on the CUSIP designation are no longer appropriate and may be
removed. I understand that upon receipt of this letter, DTC will remove any stop
or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of further
assistance.
Very truly yours,
By:
Authorized Officer
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