1
EXHIBIT 2.3
THIS AGREEMENT IS MADE the 29th day of April, 1998
BETWEEN: (1) COTSWOLD INVESTMENTS LTD of P.O. Box 309,Xxxxxx Town,
Grand Cayman, Cayman Islands (the "Vendor")
AND (2) AMKOR TECHNOLOGY, INC., a Delaware Corporation of 0000
Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000 (the
"Purchaser")
WHEREAS:-
The parties wish to record the arrangements made between them in relation to the
sale by the Vendor to the Purchaser of 63,904,851 Shares of US$0.01 nominal
value each (the "Shares") of Amkor International Holdings (the "Company"),
beneficially and legally owned by the Vendor.
NOW IT IS HEREBY AGREED as follows:
1. The Vendor shall sell and the Purchaser shall purchase the legal and
beneficial interest in the Shares effective on the date hereof (the
"Closing Date"). On the Closing Date, the Purchaser shall issue to the
Vendor 63,904,851 shares of stock of US$0.001 par value each of the
Purchaser (the "Purchaser Shares"), issued as fully paid and non
assessable, and the receipt by the Vendor of the Purchaser Shares issued
by the Purchaser shall be good and sufficient discharge of the
obligation of the Purchaser to pay the purchase price for the Shares and
the receipt by the Purchaser of the Shares issued by Vendor shall be
good and sufficient discharge of the obligation of the Purchaser to pay
the purchase price for the Purchaser Shares.
2. The Vendor hereby represents, warrants and acknowledges that:-
(a) The Vendor is the legal and beneficial owner of the Shares
(having the nominal value described in the recital set out above
and being fully paid) and has absolute right to sell, assign,
convey, transfer and deliver the beneficial and legal title in
such Shares which are free and clear of any liens, claims or
encumbrances;
(b) The Vendor has duly executed and delivered this Agreement and
this Agreement constitutes valid, legal and binding obligations
of the Vendor enforceable against the Vendor in accordance with
its terms;
(c) The Vendor has, so far as it is aware, complied with all
applicable laws and regulations in any relevant jurisdiction
with regard to the acquisition and transfer of
2
-2-
the Shares.
3. The Purchaser hereby represents, warrants and acknowledges that:
(a) The Purchaser has all requisite legal and corporate power and
authority to execute and deliver this Agreement, to sell and
issue the Purchaser Shares hereunder, and to carry out and
perform its obligations under the terms of this Agreement.
(b) All corporate action on the part of the Purchaser, its directors
and stockholders necessary for the authorization, execution,
delivery and performance of this Agreement by the Purchaser, the
authorization, sale, issuance and delivery of the Purchaser
Shares and the performance of all of the Purchaser's obligations
hereunder have been or will be taken prior to the Closing Date.
(c) This Agreement, when executed and delivered by the Purchaser,
constitutes a valid and binding obligation of the Purchaser,
enforceable in accordance with its terms, subject to laws of
general application relating to bankruptcy, insolvency and the
relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies.
(d) The Purchaser Shares, when issued in compliance with the
provisions of this Agreement, will be validly issued, fully paid
and nonassessable.
(e) The Purchaser Shares will be free of any liens or encumbrances
other than any liens or encumbrances created by or imposed upon
the holders; provided, however, that the Purchaser Shares are
subject to restrictions on transfer under state and/or federal
securities laws and this Agreement.
4. The parties hereto shall be responsible for their own costs in
connection with the preparation and negotiation of this Agreement and
the transactions contemplated hereby.
5. The obligations of the Vendor under this Agreement will continue after
payment of the purchase price of the Shares.
6. The Purchaser acknowledges that in entering into this Agreement, it has
not relied upon any representation and warranty given by the Vendor
except as set out in Clause 2 above and in Exhibit A hereto, and the
Vendor acknowledges that in entering into this Agreement, it has not
relied upon any representation and warranty given by the Purchaser
except as set out in Clause 3 above.
7. Neither the Purchaser Shares nor any beneficial interest therein shall
be transferred, encumbered or otherwise disposed of in any way except in
accordance with the provisions
3
-3-
of this Agreement. Any transferee of the Purchaser Shares shall agree to
be bound by the terms of this Agreement. The Vendor agrees to execute
and deliver to Purchaser, concurrently with execution and delivery of
this Agreement, the Investment Representation Statement attached hereto
as EXHIBIT A.
8. (a) Vendor understands and agrees that Purchaser shall cause the
legends set forth below or legends substantially equivalent
thereto, to be placed upon any certificate(s) evidencing
ownership of the Purchaser Shares together with any other
legends that may be required by Purchaser or by applicable state
or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
UNLESS AND UNTIL REGISTERED UNDER THE SECURITIES ACT OR, IN THE
OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THESE
SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION IS IN COMPLIANCE THEREWITH.
(b) Stop-Transfer Notices. Vendor agrees that, in order to ensure
compliance with the restrictions referred to herein, Purchaser
may issue appropriate "stop transfer" instructions to its
transfer agent, if any, and that, if Purchaser transfers its own
securities, it may make appropriate notations to the same effect
in its own records.
(c) Refusal to Transfer. The Company shall not be required (i) to
transfer on its books any Purchaser Shares that have been sold
or otherwise transferred in violation of any of the provisions
of this Agreement or (ii) to treat as owner of such Purchaser
Shares or to accord the right to vote or pay dividends to any
purchaser or other transferee to whom such Purchaser Shares
shall have been so transferred.
9. This Agreement may be executed in one or more counterparts, each of
which shall be deemed originals, all of which together shall constitute
one and the same instrument.
10. This Agreement shall be binding on and inure for the benefit of the
parties hereto and their respective successors and the parties each
agree that they may not assign or transfer any of their rights and
obligations under this Agreement.
11. Every notice and communication under this Agreement shall:-
(a) be in writing, delivered personally or by prepaid letter, telex or
telecopier;
(b) be deemed to have been received in the case of a telex or telecopier at
the time of dispatch (provided that if the date of dispatch is not a
business day in the country of
4
-4-
the addressee, it shall be deemed to have been received at the opening
of business on the next such business day and in the case of a letter,
when delivered personally or seven days after being put into the post,
prepaid airmail), and
(c) be sent to the address of the relevant party given above or to such
other address notified for that purpose and in the case of a telecopy or
telex, such number as may have been notified from time to time for such
purpose.
12. This Agreement shall be governed by and construed in accordance with the
laws of the Cayman Islands.
13. In relation to any legal action or proceedings arising out of or in
connection with this Agreement ("Proceedings"), the Vendor and the
Purchaser irrevocably submit to the jurisdiction of the courts of the
Cayman Islands and waive any objection to Proceedings in such courts,
whether on the grounds that the Proceedings have been brought in an
inconvenient forum or otherwise. This submission shall not affect the
right of the Vendor or the Purchaser to take Proceedings in any other
court of competent jurisdiction, nor shall the taking of Proceedings in
any other court of competent jurisdiction preclude any party from taking
Proceedings in any other court of competent jurisdiction (whether
concurrently or not).
IN WITNESS WHEREOF this Agreement has been executed on the date first above
mentioned.
Signed for and on behalf of )
COTSWOLD INVESTMENTS LTD )
)
by: per pro Commerce Advisory Services Limited )
)
/s/ illegible )
____________________________ )
Signed for and on behalf of )
AMKOR TECHNOLOGY, INC. )
by: )
)
/s/ Xxxxx X. Xxxxxxxx )
____________________________ )
Xxxxx X. Xxxxxxxx, Secretary )
EXHIBIT A
5
-5-
INVESTMENT REPRESENTATION STATEMENT
Vendor : Cotswold Investments Ltd.
Purchaser : Amkor Technology, Inc.
Securities : Common Stock
Amount : 63,904,851 Shares of Common Stock
In connection with the purchase of the above-listed Securities, the undersigned
Vendor represents to Purchaser the following:
(a) Vendor is aware of Purchaser's business affairs and financial
condition and has acquired sufficient information about Purchaser to reach an
informed and knowledgeable decision to acquire the Securities. Vendor is
acquiring these Securities for investment for Vendor's own account only and not
with a view to, or for resale in connection with, any "distribution" thereof
within the meaning of the Securities Act of 1933, as amended (the "SECURITIES
ACT").
(b) Vendor acknowledges and understands that the Securities constitute
"restricted securities" under the Securities Act and have not been registered
under the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of Vendor's
investment intent as expressed herein. In this connection, Vendor understands
that, in the view of the Securities and Exchange Commission, the statutory basis
for such exemption may be unavailable if Vendor's representation was predicated
solely upon a present intention to hold these Securities for the minimum capital
gains period specified under tax statutes, for a deferred sale, for or until an
increase or decrease in the market price of the Securities, or for a period of
one year or any other fixed period in the future. Vendor further understands
that the Securities must be held indefinitely unless they are subsequently
registered under the Securities Act or an exemption from such registration is
available. Vendor further acknowledges and understands that Purchaser is under
no obligation to register the Securities. Vendor understands that the
certificate evidencing the Securities will be imprinted with a legend which
prohibits the transfer of the Securities unless they are registered or such
registration is not required in the opinion of counsel satisfactory to Purchaser
and any other legend required under applicable state securities laws.
(c) Vendor is familiar with the provisions of Rule 144, promulgated
under the Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly from the issuer
thereof, in a non-public offering subject to the satisfaction of certain
conditions. The provisions of Rule 144 require the resale to occur not less than
one year after the later of the date the Securities were sold by Purchaser or
the date the Securities were sold by an affiliate of Purchaser, within the
meaning of Rule 144; and, in the case of acquisition of the
6
-6-
Securities by an affiliate, or by a non-affiliate who subsequently holds the
Securities less than two years, the satisfaction of certain of the conditions
specified by Rule 144, including: (1) the resale being made through a broker in
an unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Securities Exchange Act of 1934); and,
in the case of an affiliate, (2) the availability of certain public information
about Purchaser, (3) the amount of Securities being sold during any three month
period not exceeding the limitations specified in Rule 144(e), and (4) the
timely filing of a Form 144, if applicable.
(d) Vendor further understands that in the event all of the applicable
requirements of 144 are not satisfied, registration under the Securities Act,
compliance with Regulation A, or some other registration exemption will be
required; and that, notwithstanding the fact that Rule 144 is not exclusive, the
Staff of the Securities and Exchange Commission has expressed its opinion that
persons proposing to sell private placement securities other than in a
registered offering and otherwise than pursuant to Rules 144 or 701 will have a
substantial burden of proof in establishing that an exemption from registration
is available for such offers or sales, and that such persons and their
respective brokers who participate in such transactions do so at their own risk.
Vendor understands that no assurances can be given that any such other
registration exemption will be available in such event.
Signature of Vendor:
per pro Commerce Advisory Services Limited
/s/ Illegible
------------------------------------------
Signature of Authorized Signatory
Illegible
------------------------------------------
Print Name and Title
