1
EXHIBIT 10.3
SENIOR SUBORDINATED NOTES
REGISTRATION RIGHTS AGREEMENT
DATED AS OF MAY 13, 1999
BY AND AMONG
AMKOR TECHNOLOGY, INC.
AND
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
BT ALEX. ▇▇▇▇▇ INCORPORATED
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
BANCBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
PRUDENTIAL SECURITIES INCORPORATED
2
This Registration Rights Agreement (this "Agreement") is made and
entered into as of May 13, 1999, by and among Amkor Technology, Inc., a Delaware
corporation (the "Company"), and the several initial purchasers named in
Schedule A hereto (the "Initial Purchasers," or, each, an "Initial Purchaser"),
each of whom has agreed to purchase the Company's 10 1/2% Series A Senior
Subordinated Notes due 2009 (the "Series A Senior Subordinated Notes") pursuant
to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated May 6,
1999, (the "Purchase Agreement"), by and among the Company and the Initial
Purchasers. In order to induce the Initial Purchasers to purchase the Series A
Senior Subordinated Notes, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the obligations of the Initial Purchasers set forth in Section
3 of the Purchase Agreement. Capitalized terms used herein and not otherwise
defined shall have the meaning assigned to them in the Indenture dated as of May
13, 1999, between the Company and State Street Bank and Trust Company, as
Trustee (the "Senior Subordinated Notes Indenture").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
AFFILIATED MARKET MAKER: A Broker-Dealer who is deemed to be an
Affiliate of the Company.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
CERTIFICATED SECURITIES: Definitive Notes, as defined in the Senior
Subordinated Notes Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for purposes
of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the Series B
Senior Subordinated Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the period
required pursuant to Section 3(b) hereof and (c) the delivery by the Company to
the Registrar under Section 2.03 of the Senior Subordinated Notes Indenture of
Series B Senior Subordinated Notes in the same aggregate principal amount as the
aggregate principal amount of Series A Senior Subordinated Notes tendered by
Holders thereof pursuant to the Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a) hereof.
2
3
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The exchange and issuance by the Company of a principal
amount of Series B Senior Subordinated Notes (which shall be registered pursuant
to the Exchange Offer Registration Statement) equal to the outstanding principal
amount of Series A Senior Subordinated Notes that are tendered by such Holders
in connection with such exchange and issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchasers propose
to sell the Series A Senior Subordinated Notes to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the Act.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company filed
with the Commission pursuant to the Act relating to (a) an offering of Series B
Senior Subordinated Notes pursuant to an Exchange Offer or (b) the registration
for resale of Transfer Restricted Securities pursuant to the Shelf Registration
Statement, in each case, (i) that is filed pursuant to the provisions of this
Agreement and (ii) including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all exhibits and
material incorporated by reference therein.
REGULATION S: Regulation S promulgated under the Act.
RULE 144: Rule 144 promulgated under the Act.
SERIES B SENIOR SUBORDINATED NOTES: The Company's 10 1/2% Series B
Senior Subordinated Notes due 2009 to be issued pursuant to the Senior
Subordinated Notes Indenture: (i) in the Exchange Offer or (ii) as contemplated
by Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
in effect on the date of the Senior Subordinated Notes Indenture.
TRANSFER RESTRICTED SECURITIES: Each (A) Series A Senior Note, until the
earliest to occur of (i) the date on which such Series A Senior Note is
exchanged in the Exchange Offer for a Series B Senior
3
4
Note which is entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Act, (ii) the date on
which such Series A Senior Note has been disposed of in accordance with a Shelf
Registration Statement (and the purchasers thereof have been issued Series B
Senior Subordinated Notes), or (iii) the date on which such Series A Senior Note
may be sold to the public pursuant to Rule 144 under the Act and each (B) Series
B Senior Note held by a Broker Dealer until the date on which such Series B Note
is disposed of by a Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including the
delivery of the Prospectus contained therein).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Company shall (i) use commercially reasonable efforts to
cause the Exchange Offer Registration Statement to be filed with the Commission
as soon as practicable after the Closing Date, but in no event later than 120
days after the Closing Date (such 120th day being the "Filing Deadline"), (ii)
use commercially reasonable efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but in no event
later than 210 days after the Closing Date (such 210th day being the
"Effectiveness Deadline"), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings, if any, in
connection with the registration and qualification of the Series B Senior
Subordinated Notes to be made under the Blue Sky laws of such jurisdictions as
are necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Exchange Offer Registration Statement, commence and
Consummate the Exchange Offer. The Exchange Offer shall be on the appropriate
form permitting (x) registration of the Series B Senior Subordinated Notes to be
offered in exchange for the Series A Senior Subordinated Notes that are Transfer
Restricted Securities and (y) resales of Series B Senior Subordinated Notes by
Broker-Dealers that tendered into the Exchange Offer Series A Senior
Subordinated Notes that such Broker-Dealer acquired for its own account as a
result of market making activities or other trading activities (other than
Series A Senior Subordinated Notes acquired directly from the Company or any of
its Affiliates) as contemplated by Section 3(c) below.
(b) The Company shall use commercially reasonable efforts to cause
the Exchange Offer Registration Statement to be effective continuously, and
shall keep the Exchange Offer open for a period of not less than the minimum
period required under applicable federal and state securities laws to Consummate
the Exchange Offer; provided, however, that in no event shall such period be
less than 30 Business Days. The Company shall cause the Exchange Offer to comply
with all applicable federal and state securities laws. No securities other than
the Series B Senior Notes and the Series B Senior Subordinated Notes shall be
included in the Exchange Offer Registration Statement. The Company shall use
commercially reasonable efforts to cause the Exchange Offer to be Consummated on
the earliest practicable date after the Exchange Offer Registration Statement
has become effective, but in no event later than 30 Business Days thereafter
(such 30th day being the "Consummation Deadline").
(c) The Company shall include a "Plan of Distribution" section in
the Prospectus contained in the Exchange Offer Registration Statement and
indicate therein that any Broker-Dealer who holds
4
5
Transfer Restricted Securities that were acquired for the account of such
Broker-Dealer as a result of market-making activities or other trading
activities (other than Series A Senior Subordinated Notes acquired directly from
the Company or any Affiliate of the Company), may exchange such Transfer
Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission.
Because such Broker-Dealer may be deemed to be an "underwriter" within
the meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Series B
Senior Subordinated Notes received by such Broker-Dealer in the Exchange Offer,
the Company shall permit the use of the Prospectus contained in the Exchange
Offer Registration Statement by such Broker-Dealer to satisfy such prospectus
delivery requirement. To the extent necessary to ensure that the prospectus
contained in the Exchange Offer Registration Statement is available for resales
of Series B Senior Subordinated Notes by Broker-Dealers, the Company agrees to
use commercially reasonable efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented, amended and current as required
by and subject to the provisions of Section 6(a) and (c) hereof and in
conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of 180 days from the Consummation Deadline or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Registration
Statement have been sold pursuant thereto. The Company shall provide sufficient
copies of the latest version of such Prospectus to such Broker-Dealers, promptly
upon request, and in no event later than one day after such request, at any time
during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted
by applicable law or Commission policy after the Company has complied with the
procedures set forth in Section 6(a)(i) below or (ii) any Holder of Series A
Senior Subordinated Notes which are Transfer Restricted Securities shall notify
the Company within 20 Business Days following the Consummation Deadline that (A)
such Holder is prohibited by law or Commission policy from participating in the
Exchange Offer, (B) such Holder may not resell the Series B Senior Subordinated
Notes acquired by it in the Exchange Offer to the public without delivering a
prospectus, and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder, or
(C) such Holder is a Broker-Dealer and holds Series A Senior Subordinated Notes
acquired directly from the Company or any of the Company's affiliates, then the
Company shall:
(x) use commercially reasonable efforts to cause to be
filed, on or prior to the later of (1) the Filing Deadline and (2) 60
days after the date on which the Company receives the notice specified
in clause (a)(ii) above, a shelf registration statement pursuant to Rule
415 under the Act (which may be an amendment to the Exchange Offer
Registration Statement (the "Shelf Registration Statement")), relating
to all Transfer Restricted Securities, and
(y) shall use commercially reasonable efforts to cause such
Shelf Registration Statement to become effective on or prior to the
later of (i) 120 days after the Filing Deadline for the Shelf
Registration Statement or (ii) 120 days after the date on which the
Company receives notice under (x)(ii) above (such day the "Effectiveness
Deadline").
If, after the Company has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) above, the Company is required
to file and make effective a Shelf
5
6
Registration Statement solely because the Exchange Offer is not
permitted under applicable federal law (i.e., clause (a)(i) above), then
the filing of the Exchange Offer Registration Statement shall be deemed
to satisfy the requirements of clause (x) above; provided that, in such
event, the Company shall remain obligated to meet the Effectiveness
Deadline set forth in clause (y) above.
To the extent necessary to ensure that the Shelf Registration Statement
is available for resales of Transfer Restricted Securities by the Holders
thereof entitled to the benefit of this Section 4(a) and the other securities
required to be registered therein pursuant to Section 6(b)(ii) hereof, the
Company shall use commercially reasonable efforts to keep any Shelf Registration
Statement required by this Section 4(a) continuously effective, supplemented,
amended and current as required by and subject to the provisions of Sections
6(b) and (c) hereof and in conformity with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission as announced
from time to time, for a period of at least two years following the Closing
Date, or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Shelf Registration Statement have been sold pursuant
thereto.
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 10 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
(c) Prohibitions Against Sales. Notwithstanding anything to the
contrary in this Section 4 or in Section 3(c), but subject to compliance with
Section 5, the Company may, by delivering written notice to the Holders,
prohibit offers and sales of Transfer Restricted Securities pursuant to the
Shelf Registration Statement at any time if (A)(i) the Company is in possession
of material non-public information relating to the Company, (ii) the Company
determines (based on advice of counsel) that such prohibition is necessary in
order to avoid a requirement to disclose such material non-public information to
the public and (iii) the Company determines in good faith that public disclosure
of such material non-public information would not be in the best interests of
the Company and its stockholders or (B)(i) the Company has made a public
announcement relating to an acquisition or business combination transaction
including the Company and/or one or more of its subsidiaries that is material to
the Company and its subsidiaries taken as a whole and (ii) the Company
determines in good faith that (x) offers and sales of Transfer Restricted
Securities pursuant to the Shelf Registration Statement prior to the
consummation of such transaction (or such earlier date as the Company shall
determine) is not in the best interests of the Company and its stockholders or
(y) it would be impracticable at the time to obtain any financial statements
relating to such acquisition or business combination transaction that would be
required to be set forth in the Shelf Registration; provided, however, that upon
(i) the public disclosure by the Company of the material non-public information
described in clause (A) of this paragraph or (ii) the consummation, abandonment
or termination of, or the availability of the required financial statements with
respect to, a transaction described in clause (B) of this paragraph, the
suspension of the use of the Shelf Registration Statement pursuant to this
Section 4(c) shall cease and the Company shall promptly comply with Section
6(c)(ii) hereof and notify Holders that dispositions of Transfer Restricted
Securities may be resumed.
6
7
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing Deadline, (ii)
any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated on or prior to the Consummation Deadline
or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded reasonably promptly by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself declared effective reasonably promptly (including as a result
of a prohibition against sales of Transfer Restricted Securities pursuant to
Section 4(c) hereof at any time for a period of time which shall exceed 30 days
in the aggregate during any 3-month period or 90 days in the aggregate during
any 365-day period) (each such event referred to in clauses (i) through (iv), a
"Registration Default"), then the Company hereby jointly and severally agrees to
pay to each Holder of Transfer Restricted Securities affected thereby liquidated
damages in an amount equal to 0.25% per annum in principal amount of Transfer
Restricted Securities held by such Holder for each week or portion thereof that
the Registration Default continues for the first 90-day period immediately
following the occurrence of such Registration Default. The amount of the
liquidated damages shall increase by 0.25% per annum in principal amount of
Transfer Restricted Securities with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum amount of
liquidated damages of 1.00% per annum in principal amount of Transfer Restricted
Securities; provided that the Company shall in no event be required to pay
liquidated damages for more than one Registration Default at any given time. If,
after the cure of all Registration Defaults then in effect, there is a
subsequent Registration Default, the rate of Additional Interest for such
subsequent Registration Default shall initially be 0.25%, regardless of the
Additional Interest rate in effect with respect to any prior Registration
Default at the time of the cure of such Registration Default. Notwithstanding
anything to the contrary set forth herein, (1) upon filing of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (i) above, (2) upon the effectiveness of the Exchange
Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (ii) above, (3) upon Consummation of the Exchange
Offer, in the case of (iii) above, or (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional Registration Statement
that causes the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement) to again be declared effective or made usable
in the case of (iv) above, the liquidated damages payable with respect to the
Transfer Restricted Securities as a result of such clause (i), (ii), (iii) or
(iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Senior
Subordinated Notes Indenture, on each Interest Payment Date, as more fully set
forth in the Senior Subordinated Notes Indenture and the Notes. Notwithstanding
the fact that any securities for which liquidated damages are due cease to be
Transfer Restricted Securities, all obligations of the Company to pay liquidated
damages with respect to securities shall survive until such time as such
obligations with respect to such securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company shall (x) comply with all applicable provisions of
Section 6(c) below, (y) use commercially reasonable efforts to effect such
exchange and to permit the resale of Series B Senior Subordinated Notes by
Broker-Dealers that tendered in the Exchange Offer Series A Senior Subordinated
Notes that such Broker-Dealer acquired for its own account as a result of its
market making activities or other trading
7
8
activities (other than Series A Senior Subordinated Notes acquired directly from
the Company or any of its Affiliates) being sold in accordance with the intended
method or methods of distribution thereof, and (z) comply with all of the
following provisions:
(i) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, that in the reasonable opinion of counsel to the Company
raises a substantial question as to whether the Exchange Offer is
permitted by applicable federal law, if and to the extent reasonable
under the circumstances, the Company hereby agrees to seek a no-action
letter or other favorable decision from the Commission allowing the
Company to Consummate an Exchange Offer for such Transfer Restricted
Securities. If and to the extent reasonable under the circumstances, the
Company hereby agrees to pursue the issuance of such a decision to the
Commission staff level.
(ii) As a condition to its participation in the Exchange
Offer, each Holder of Transfer Restricted Securities (including, without
limitation, any Holder who is a Broker Dealer) shall furnish, upon the
request of the Company, prior to the Consummation of the Exchange Offer,
a written representation to the Company (which may be contained in the
letter of transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an Affiliate of the Company,
(B) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any Person to participate in, a
distribution of the Series B Senior Subordinated Notes to be issued in
the Exchange Offer and (C) it is acquiring the Series B Senior
Subordinated Notes in its ordinary course of business. As a condition to
its participation in the Exchange Offer each Holder that is a
Broker-Dealer using the Exchange Offer to participate in a distribution
of the Series B Senior Subordinated Notes shall acknowledge and agree
that, if the resales are of Series B Senior Subordinated Notes obtained
by such Holder in exchange for Series A Senior Subordinated Notes
acquired directly from the Company or an Affiliate thereof, it (1) could
not, under Commission policy as in effect on the date of this Agreement,
rely on the position of the Commission enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the Commission's
letter to Shearman & Sterling dated July 2, 1993, and similar no-action
letters (including, if applicable, any no-action letter obtained
pursuant to clause (i) above), and (2) must comply with the registration
and prospectus delivery requirements of the Act in connection with a
secondary resale transaction and that such a secondary resale
transaction must be covered by an effective registration statement
containing the selling security holder information required by Item 507
or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall provide a supplemental letter
to the Commission (A) stating that the Company is registering the
Exchange Offer in reliance on the position of the Commission enunciated
in Exxon Capital Holdings Corporation (available May 13, 1988), ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and, if
applicable, any no-action letter obtained pursuant to clause (i) above,
(B) including a representation that the Company has not entered into any
arrangement or understanding with any Person to distribute the Series B
Senior Subordinated Notes to be received in the Exchange Offer and that,
to the best of the Company's information and belief, each Holder
participating in the Exchange Offer is acquiring the Series B Senior
Subordinated Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Series B Senior Subordinated Notes received in the
8
9
Exchange Offer and (C) any other undertaking or representation required
by the Commission as set forth in any no-action letter obtained pursuant
to clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall:
(i) comply with all the provisions of Section 6(c) below and
use commercially reasonable efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof
(as indicated in the information furnished to the Company pursuant to
Section 4(b) hereof), and pursuant thereto the Company will prepare and
file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof
within the time periods and otherwise in accordance with the provisions
hereof, and
(ii) issue, upon the request of any Holder or purchaser of
Series A Senior Subordinated Notes covered by any Shelf Registration
Statement contemplated by this Agreement, Series B Senior Subordinated
Notes having an aggregate principal amount equal to the aggregate
principal amount of Series A Senior Subordinated Notes sold pursuant to
the Shelf Registration Statement and surrendered to the Company for
cancellation; the Company shall register Series B Senior Subordinated
Notes on the Shelf Registration Statement for this purpose and issue the
Series B Senior Subordinated Notes to the purchaser(s) of securities
subject to the Shelf Registration Statement in the names as such
purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the Company
shall:
(i) use commercially reasonable efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event subject to
Section 4(c) above that would cause any such Registration Statement or
the Prospectus contained therein (A) to contain an untrue statement of
material fact or omit to state any material fact necessary to make the
statements therein not misleading or (B) not to be effective and usable
for resale of Transfer Restricted Securities during the period required
by this Agreement, the Company shall file promptly an appropriate
amendment to such Registration Statement curing such defect, and, if
Commission review is required, use commercially reasonable efforts to
cause such amendment to be declared effective as soon as practicable.
(ii) subject to Section 4(c) above, prepare and file with the
Commission such amendments and post-effective amendments to the
applicable Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as the case may be; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with Rules 424, 430A and 462, as applicable, under the Act
in a timely manner; and comply with the provisions of the Act with
respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof
set forth in such Registration Statement or supplement to the
Prospectus;
9
10
(iii) advise each Holder that is a Broker-Dealer and each
Initial Purchaser who is required to deliver a prospectus in connection
with sales or market making activities (an "Affiliated Market Maker") to
the extent the Company is aware of the same, promptly and, if requested
by such Person, confirm such advice in writing, (A) when the Prospectus
or any Prospectus supplement or post-effective amendment has been filed,
and, with respect to any applicable Registration Statement or any
post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Registration Statement in order to
make the statements therein not misleading, or that requires the making
of any additions to or changes in the Prospectus in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement,
or any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company shall use commercially
reasonable efforts to obtain the withdrawal or lifting of such order at
the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(v) upon request, furnish to each Holder and each Affiliated
Market Maker in connection with such exchange or sale, if any, before
filing with the Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements to any such
Registration Statement or Prospectus, which documents will be subject to
the review and comment of such Persons in connection with such sale, if
any, for a period of at least five Business Days, and the Company will
not file any such Registration Statement or Prospectus or any amendment
or supplement to any such Registration Statement or Prospectus to which
such Persons shall reasonably object within five Business Days after the
receipt thereof;
(vi) make available, at reasonable times, for inspection by
each Holder and each Affiliated Market Maker and any attorney or
accountant retained by such Persons, all financial and other records,
pertinent corporate documents of the Company and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such Persons, attorney or accountant in connection with
such Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness;
10
11
(vii) if requested by any Holders in connection with such
exchange or sale or any Affiliated Market Maker, promptly include in any
Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such Persons
may reasonably request to have included therein relating to the "Plan of
Distribution" of the Transfer Restricted Securities and the use of the
Registration Statement or Prospectus for market making activities; and
make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is
notified of the matters to be included in such Prospectus supplement or
post-effective amendment;
(viii) upon the request furnish to such Holder in connection
with such exchange or sale and each Affiliated Market Maker, without
charge, at least one copy of the Registration Statement, as first filed
with the Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(ix) deliver to each Holder and each Affiliated Market Maker
without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Company hereby consents to the use
(in accordance with law) of the Prospectus and any amendment or
supplement thereto by each selling Person in connection with the
offering and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto and all market
making activities of such Affiliated Market Maker, as the case may be;
(x) upon the request of any Holder who is a Broker-Dealer or
any Affiliated Market Maker, make representations and warranties as
reasonably requested and take all such other actions as reasonably
requested in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
applicable Registration Statement contemplated by this Agreement as may
be reasonably requested by any such Holder or Affiliated Market Maker in
connection with any sale or resale pursuant to any applicable
Registration Statement. In connection with the exchange or disposition
of Transfer Restricted Securities pursuant to a Registration Statement,
the Company shall:
(A) upon request of any Holder, furnish (or in the
case of paragraphs (2) and (3), use commercially reasonable
efforts to cause to be furnished) to each Person, upon
Consummation of the Exchange Offer or upon the effectiveness of
the Shelf Registration Statement, as the case may be:
(1) a certificate, dated such date, signed
on behalf of the Company by (x) the President or any
Vice President and (y) a principal financial or
accounting officer of the Company, confirming, as of the
date thereof, the matters set forth in Sections
6(n)(iii) and (iv), 6(o) and 6(q) of the Purchase
Agreement and such other similar matters as such Person
may reasonably request;
(2) an opinion, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, of counsel for the Company covering
matters similar to those set forth in paragraph (x) of
Section 6(d) of the Purchase Agreement, and in any event
including a statement to the effect that such counsel
has participated in conferences with officers and other
representatives of the Company, representatives of the
independent certified public accountants of the Company
11
12
at which the contents of the applicable Registration
Statement were discussed and, although such counsel is
not passing upon and assumes no responsibility for, the
accuracy, completeness or fairness of the statements
contained in the applicable Registration Statement
(except as indicated above), on the basis of the
foregoing, no facts came to such counsel's attention
which led such counsel to believe that the applicable
Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became
effective and, in the case of the Exchange Offer
Registration Statement, as of the date of Consummation
of the Exchange Offer, contained an untrue statement of
a material fact or omitted to state a material fact
necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the case
of the opinion dated the date of Consummation of the
Exchange Offer, as of the date of Consummation,
contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading. Without limiting the foregoing, such counsel
may state further that such counsel assumes no
responsibility for, and has not independently verified,
the accuracy, completeness or fairness of the financial
statements and schedules and other financial data
included in any Registration Statement contemplated by
this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the
date of Consummation of the Exchange Offer, or as of the
date of effectiveness of the Shelf Registration
Statement, as the case may be, from the Company's
independent accountants, in the customary form and
covering matters of the type customarily covered in
comfort letters to underwriters in connection with
underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to
Sections 6(j) and (k) of the Purchase Agreement; and
(B) deliver such other documents and certificates as
may be reasonably requested by the selling Holders to evidence
compliance with the matters covered in clause (A) above and with
any customary conditions contained in the any agreement entered
into by the Company pursuant to this clause (xi);
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all
other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that the Company
shall not be required to register or qualify as a foreign corporation
where it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation, other than
as to matters and transactions relating to the Registration Statement,
in any jurisdiction where it is not now so subject;
(xii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends; and to register such Transfer
12
13
Restricted Securities in such denominations and such names as the
selling Holders may request at least two Business Days prior to such
sale of Transfer Restricted Securities;
(xiii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration Statement
covering such Transfer Restricted Securities and provide the Trustee
under the Senior Subordinated Notes Indenture with printed certificates
for the Transfer Restricted Securities which are in a form eligible for
deposit with the Depository Trust Company;
(xiv) otherwise use commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is
defined in paragraph (c) of Rule 158 under the Act);
(xv) cause the Senior Subordinated Notes Indenture to be
qualified under the TIA not later than the effective date of the first
Registration Statement required by this Agreement and, in connection
therewith, cooperate with the Trustee and the Holders to effect such
changes to the Senior Subordinated Notes Indenture as may be required
for such Senior Subordinated Notes Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use commercially
reasonable efforts to cause the Trustee to execute, all documents that
may be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Senior
Subordinated Notes Indenture to be so qualified in a timely manner; and
(xvi) provide promptly to each Holder and Affiliated Market
Maker, upon request, each document filed with the Commission pursuant to
the requirements of Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security and each Affiliated Market Maker agrees that, upon
receipt of the notice referred to in Section 4(c) or 6(c)(iii)(C) or any notice
from the Company of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof (in each case, a "Suspension Notice"), such Person will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until (i)(A) such Person has received
copies of the supplemented or amended Prospectus contemplated by Section
6(c)(iv) hereof, or (B) such Person is advised in writing by the Company that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus (in each case, the "Recommencement Date"). Each Person receiving a
Suspension Notice hereby agrees that it will either (ii)(A) destroy any
Prospectuses, other than permanent file copies, then in such Person's possession
which have been replaced by the Company with more recently dated Prospectuses or
(B) deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Person's possession of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of the Suspension Notice. The time period regarding the effectiveness of
such Registration Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by a number of days equal to the number of days in the period
from and including the date of delivery of the Suspension Notice to the date of
delivery of the Recommencement Date.
13
14
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses; (ii) all fees and
expenses of compliance with federal securities and state Blue Sky or securities
laws; (iii) all expenses of printing (including printing certificates for the
Series B Senior Subordinated Notes to be issued in the Exchange Offer and
printing of Prospectuses whether for exchanges, sales, market making or
otherwise), messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company and the Holders of Transfer Restricted
Securities; (v) all application and filing fees in connection with listing the
Series B Senior Subordinated Notes on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the
Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities who are
tendering Series A Senior Subordinated Notes into in the Exchange Offer and/or
selling or reselling Series A Senior Subordinated Notes or Series B Senior
Subordinated Notes pursuant to the "Plan of Distribution" contained in the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
applicable, for the reasonable fees and disbursements of not more than one
counsel, who shall be ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, unless another firm shall be chosen by
the Holders of a majority in principal amount of the Transfer Restricted
Securities for whose benefit such Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder,
its directors, officers, employees, representatives and agents and each Person,
if any, who controls such Holder (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) (collectively, the "Holder Indemnified Parties")
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which that Holder Indemnified Party may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage or
liability or action arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement, preliminary prospectus or Prospectus (or any amendment or supplement
thereto) provided by the Company to any Holder or any prospective purchaser of
Series B Senior Subordinated Notes or registered Series A Senior Subordinated
Notes, or (ii) the omission or alleged omission to state therein (or in any
amendment or supplement thereto) a material fact required to be stated therein
or necessary to make the statements therein not misleading and shall reimburse
each Holder Indemnified Party promptly upon demand for any legal or other
expenses reasonably incurred by that Holder Indemnified Party in connection with
investigating or preparing to defend or defending against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of or is based upon (i) any untrue
statement
14
15
or alleged untrue statement in or (ii) omission or alleged omission
from any Registration Statement, preliminary prospectus or Prospectus (or any
amendment or supplement thereto) provided by the Company to any Holder or any
prospective purchaser of Series B Senior Subordinated Notes or registered Series
A Senior Subordinated Notes in reliance upon and in conformity with written
information furnished to the Company by and of the Holders specifically for use
therein. This indemnity agreement is not exclusive and will be in addition to
any liability which the Company might otherwise have and shall not limit any
rights or remedies which may otherwise be available at law or in equity to each
Holder Indemnified Party.
(b) Each Holder of Transfer Restricted agrees, severally and not
jointly, shall indemnify and hold harmless the Company, its officers, employees,
representatives, agents, directors and each person, if any, who controls (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the
Company (collectively the "Company Indemnified Parties" and each a "Company
Indemnified Party") against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company Indemnified
Parties may become subject, under the Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any amendment
or supplement thereto) provided by the Company to any Holder or any prospective
purchaser of Series B Senior Subordinated Notes or registered Series A Senior
Subordinated Notes, or (ii) the omission or alleged omission to state therein
(or in any amendment or supplement thereto) a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Holder
specifically for use therein, and shall reimburse the Company Indemnified
Parties for any legal or other expenses reasonably incurred by such parties in
connection with investigating or preparing to defend or defending against or
appearing as third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred. In no event shall any
Holder, its directors, officers, employees, representatives and agents or any
Person who controls such Holder be liable or responsible for any amount in
excess of the amount by which the total amount received by such Holder with
respect to its sale of Transfer Restricted Securities pursuant to a Registration
Statement exceeds (i) the amount paid by such Holder for such Transfer
Restricted Securities and (ii) the amount of any damages that such Holder, its
directors, officers or any Person who controls such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure; and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified
15
16
party shall have the right to employ separate counsel in any such action and to
participate in the defense thereof but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the employment
thereof has been specifically authorized by the indemnifying party in writing,
(ii) such indemnified party shall have been advised by such counsel that there
may be one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party and in the reasonable
judgment of such counsel it is advisable for such indemnified party to employ
separate counsel or (iii) the indemnifying party has failed to assume the
defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by a majority of the Holders,
if the indemnified parties under this Section 8 consist of any Holder
Indemnified Parties, or by the Company if the indemnified parties under this
Section 8 consist of any Company Indemnified Parties. Each indemnified party, as
a condition of the indemnity agreements contained in Sections 8(a) and (b),
shall use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under Section
8(a) or 8(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i)(A) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company, on the one hand, and the Holders, on
the other, on their sale of Transfer Restricted Securities, or (B) if the
allocation provided by clause (i)(A) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i)(A) above but also the relative fault of the Company,
on the one hand, and of the Holder, on the other, with respect to the statements
or omissions which resulted in such loss, claim, damage or liability, or action
in respect thereof, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or the Holder on the other, the intent of the parties
and their relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company and the Initial
Purchasers agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were to be determined by pro rata allocation (even
if the Holders were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), (ii)(A) no
Holder, its directors, officers, representatives or agents or any Person, if
any, who controls such Holder shall be required to contribute any amount in
excess of the amount by which the total received by such Holder with respect to
the sale of Transfer Restricted Securities pursuant to a Registration Statement
exceeds (x) the amount paid by
16
17
such Holder for such Transfer Restricted Securities and (y) the amount of any
damages which such Holder has otherwise paid or become liable to pay by reason
of any untrue or alleged untrue statement or omission or alleged omission, and
(B) any amount the Company would otherwise be required to contribute shall be
reduced by the amount the Company has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(d) are several in
proportion to the respective principal amount of Transfer Restricted Securities
held by each Holder hereunder and not joint.
(e) The Company agrees that the indemnity and contribution
provisions of this Section 8 shall apply to Affiliated Market Makers to the same
extent, on the same conditions, as it applies to Holders.
SECTION 9. RULE 144A AND RULE 144
The Company agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder, to such Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A, and (ii) is subject to Section 13 or 15 (d) of the
Exchange Act, to make all filings required thereby in a timely manner in order
to permit resales of such Transfer Restricted Securities pursuant to Rule 144.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company acknowledges and agrees that any failure
by the Company to comply with its obligations under Sections 3 and 4 hereof may
result in material irreparable injury to the Initial Purchasers or the Holders
or Affiliated Market Makers for which there is no adequate remedy at law, that
it will not be possible to measure damages for such injuries precisely and that,
in the event of any such failure, the Initial Purchasers or any Holders or
Affiliated Market Makers may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 3 and 4 hereof.
The Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(c)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose Transfer Restricted Securities are being tendered pursuant to
the Exchange Offer, and that does not affect directly or
17
18
indirectly the rights of other Holders whose Transfer Restricted Securities are
not being tendered pursuant to such Exchange Offer, may be given by the Holders
of a majority of the outstanding principal amount of Transfer Restricted
Securities subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders and Affiliated Market
Makers shall be third party beneficiaries to the agreements made hereunder
between the Company, on the one hand, and the Initial Purchasers, on the other
hand, and shall have the right to enforce such agreements directly to the extent
they may deem such enforcement necessary or advisable to protect its rights or
the rights of Holders and Affiliated Market Makers hereunder.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records
of the Registrar under the Senior Subordinated Notes Indenture, with a
copy to the Registrar under the Senior Subordinated Notes Indenture; and
(ii) if to the Company:
Amkor Technology, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: General Counsel
With a copy to:
Wilson, Sonsini, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Senior Subordinated Notes Indenture.
Upon the date of filing of the Exchange Offer or a Shelf Registration
Statement, as the case may be, notice shall be delivered to ▇▇ ▇▇▇▇▇ Securities
Corporation, on behalf of the Initial Purchasers (in the form attached hereto as
Exhibit A) and shall be addressed to: Attention: ▇▇▇▇▇▇▇ Frauen, SG Securities
Corporation, Attention: High Yield Syndicate, 1221 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an
18
19
express assignment, subsequent Holders; provided, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Transfer
Restricted Securities in violation of the terms hereof or of the Purchase
Agreement or the Senior Subordinated Notes Indenture. If any transferee of any
Holder shall acquire Transfer Restricted Securities in any manner, whether by
operation of law or otherwise, such Transfer Restricted Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Transfer Restricted Securities such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and,
if applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
19
20
SIGNATURE PAGE TO SENIOR SUBORDINATED NOTES REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMKOR TECHNOLOGY, INC.
By: /s/
-------------------------------------
Name:
Title:
SIGNATURE PAGE TO SENIOR SUBORDINATED NOTES REGISTRATION RIGHTS AGREEMENT
21
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
By: /s/
--------------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/
--------------------------------
Name:
Title:
BT ALEX. ▇▇▇▇▇ INCORPORATED
By: /s/
--------------------------------
Name:
Title:
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
By: /s/
--------------------------------
Name:
Title:
BANCBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
By: /s/
--------------------------------
Name:
Title:
PRUDENTIAL SECURITIES INCORPORATED
By: /s/
--------------------------------
Name:
Title:
SIGNATURE PAGE TO SENIOR SUBORDINATED NOTES REGISTRATION RIGHTS AGREEMENT
22
EXHIBIT A
NOTICE OF FILING OF
A/B EXCHANGE OFFER REGISTRATION STATEMENT
To: SG Securities Corporation
Attention: High Yield Syndicate
1221 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Frauen
Fax: ▇▇▇-▇▇▇-▇▇▇▇
From: Amkor Technology, Inc.
10 1/2% Senior Subordinated Notes due 2009
Date: ______________
For your information only (NO ACTION REQUIRED):
Today, ______, ____, we filed [an A/B Exchange Registration Statement/a
Shelf Registration Statement] with the Securities and Exchange Commission. We
currently expect this registration statement to be declared effective within __
business days of the date hereof.