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Exhibit 4.2
AMKOR TECHNOLOGY, INC.
5.75% Convertible Subordinated Notes due 2006
REGISTRATION AGREEMENT
New York, New York
May 25, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
As Representatives of the Initial Purchasers Named in Schedule I to the Purchase
Agreement (as defined below) c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (the "Representatives") are
acting as representatives, upon the terms set forth in a purchase agreement
dated May 18, 2001 (the "Purchase Agreement"), $250,000,000 aggregate principal
amount (plus up to an additional $50,000,000 aggregate principal amount to cover
over-allotments, if any) of its 5.75% Convertible Subordinated Notes due 2006
(the "Securities"). The Securities will be governed by an Indenture dated as of
May 25, 2001, 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. The Securities will be convertible into shares of Common Stock
(as defined in the Indenture), at the conversion price set forth in, and as the
same may be adjusted from time to time pursuant to, the Indenture. 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 Indenture. 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" has the meaning set forth in the Indenture.
"Business Day" has the meaning set forth in the Indenture.
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"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), the relevant
redemption date or Designated Event Payment 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 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.
"Holder" means a person who is a holder or beneficial owner
(including the Initial Purchaser) 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" has the meaning set forth in the preamble hereto.
"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" has the meaning set forth in the
Indenture.
"Issue Date" has the meaning set forth in the Indenture.
"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
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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.
"Maturity Date" has the meaning set forth in the Indenture.
"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.
"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, 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.
"Representatives" has the meaning set forth in the preamble
hereto.
"Rule 144" means Rule 144 (or any successor provision then in
force) promulgated by the SEC under the Act.
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"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, 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
promulgated by the SEC 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
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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 are 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.
2. Shelf Registration Statement.
(a) The Company shall prepare and, not later than 90 days
following the Issue 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 210
days after the Issue 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 Issue 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 Issue Date. The
Company shall amend the Shelf Registration Statement or supplement the
Prospectus as and if required by the rules, regulations or instructions
applicable to the registration form used by the Company for the Shelf
Registration Statement or as and if otherwise 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.
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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.
(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 Issue 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 (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 shall: (i) 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; (ii) 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 provision then in force) promulgated by the SEC under the Act; and (iii)
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 (each a "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.
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(e) If the Shelf Registration Statement (i) is not filed
with the SEC on or prior to 90 days after the Issue Date, (ii) has not been
declared effective by the SEC within 210 days after the Issue Date, or (iii) is
filed and declared effective but shall thereafter cease to be 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 Issue Date and ending on
the second anniversary of the Issue 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
that has complied with such Holder's obligations under this Agreement. The
amount of Liquidated Damages payable during any period in which a Registration
Default shall have occurred and is continuing is that 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 28.5714 shares of Common Stock
(subject to adjustment as provided in the Indenture) 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 28.5714
shares of Common Stock (subject to adjustment as provided in the Indenture)
constituting Transfer Restricted Securities for any additional days during which
a Registration Default has occurred and is continuing, it being understood that
all calculations pursuant to this and the preceding sentence shall be carried
out to five decimals. Following the cure of each Registration Default,
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 Securities, and the transfer and paying agent for the Common
Stock, in the case of notice with respect to any shares of Common Stock issued
upon conversion of
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Securities, notice of such occurrence or termination, of the obligation to pay
Liquidated Damages with regard to such Securities and Common Stock and the
amount thereof and of the event giving rise to such occurrence 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 then in force) promulgated by
the SEC under the Act) prior to the 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 then in force) promulgated by
the SEC 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 the
Representatives, 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 the Representatives
reasonably may propose. The Representatives 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 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 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;
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provided, that the Company makes no representation or agreement
with respect to information with respect to the Initial
Purchasers, 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 the Representatives, such Underwriter or such Holder.
(c) (1) The Company, as promptly as reasonably
practicable, shall advise the Representatives and each Holder
that has returned a completed and signed Notice and
Questionnaire to the Company and, if requested by the
Representatives 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, as applicable, 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 the
Representatives and each Holder that has returned a completed
and signed Notice and Questionnaire to the Company and, if
requested by the Representatives 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 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
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 exemption from such registration or
qualification) of such Securities or Common Stock for offer and
sale, as
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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
Section 2(d) or 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 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
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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 take such actions as the
Representatives 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 The Depository Trust Company ("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 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
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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
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
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through underwriters, brokers and dealers, and shall also
include such other information as the Representatives 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 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
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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.
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
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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 case of a Prospectus 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
(including the Initial Purchasers) 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 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
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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
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
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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 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
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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 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 the Representatives, 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 the Representatives; 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.
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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 V 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.
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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By /s/ ▇▇▇ ▇. ▇▇▇▇▇
---------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Director
For itself and the other Initial
Purchasers named in Schedule I to the
Purchase Agreement
22
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 5.75% Convertible Subordinated Notes due
2006 (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.
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.
A-1
23
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:
(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:
A-2
24
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:
(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
A-3
25
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 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
A-4
26
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.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
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 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.
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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