Exhibit 99.3
AMKOR TECHNOLOGY, INC.
$425,000,000
7 3/4% SENIOR NOTES DUE MAY 15, 2013
PURCHASE AGREEMENT
May 1, 2003
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As the Initial Purchasers
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. Introductory. Amkor Technology, Inc., a Delaware corporation
(the "Company"), proposes to issue and sell, pursuant to the terms of this
Agreement, to Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and
▇.▇. ▇▇▇▇▇▇ Securities Inc. (the "Initial Purchasers," or, each, an "Initial
Purchaser"), $425,000,000 principal amount of its 7 3/4% Senior Notes due May
15, 2013 (the "Notes"). The Notes are to be issued pursuant to an Indenture
dated as of the Closing Date (as defined herein) (the "Indenture") to be entered
into between the Company and U.S. Bank National Association, as trustee (the
"Trustee"). References herein to the Notes shall, unless the context otherwise
requires, include the Exchange Notes (as defined below).
The Notes will be offered and sold to the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "Securities
Act"), in reliance upon an exemption therefrom and will be resold by the Initial
Purchasers pursuant to Rule 144A under the Securities Act ("Rule 144A") and/or
Regulation S under the Securities Act ("Regulation S"). The Company is preparing
an offering memorandum dated the date hereof (the "Offering Memorandum") setting
forth information concerning the Company and the Notes. Copies of the Offering
Memorandum will be, delivered by the Company to the Initial Purchasers pursuant
to the terms of this Agreement. Any references herein to the Offering Memorandum
shall be deemed to include all amendments and supplements thereto, unless
otherwise noted, and all documents or financial statements incorporated by
reference therein. The Company hereby confirms that it has authorized the use of
the Offering Memorandum in connection with the offering and resale of the Notes
by the Initial Purchasers solely in accordance with Section 3.
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Holders of the Notes (including the Initial Purchasers and their direct
and indirect transferees) will be entitled to the benefits of a Registration
Rights Agreement substantially in the form contained in Exhibit A attached
hereto (the "Registration Rights Agreement") to be dated, and executed on, the
Closing Date. Pursuant to the Registration Rights Agreement the Company will
agree to file with the Securities and Exchange Commission (the "Commission") (i)
a registration statement under the Securities Act (the "Exchange Offer
Registration Statement") registering an issue of notes of the Company (the
"Exchange Notes") that are identical in all material respects to the Notes
(except that the Exchange Notes will not contain terms with respect to transfer
restrictions or liquidated damages), and (ii) under certain circumstances, one
or more shelf registration statements pursuant to Rule 415 under the Securities
Act (the "Shelf Registration Statement"), relating to the resale by certain
holders of the Notes.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Initial Purchasers
that:
(a) The Offering Memorandum as of its date does not, and on the
Closing Date (as defined below) the Offering Memorandum will not, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading;
provided, however, that the foregoing representations and warranties shall not
apply to the Initial Purchasers' Information (as defined in Section 16).
(b) The Offering Memorandum, as of its date, contains all of the
information that, if requested by a prospective purchaser of the Notes, would be
required to be provided to such prospective purchaser pursuant to Rule
144A(d)(4) and the rules and regulations of the Commission thereunder (the
"Rules and Regulations").
(c) Assuming the accuracy of the representations and warranties of
the Initial Purchasers contained in Section 3 and their compliance with the
agreements set forth therein, it is not necessary, in connection with the
issuance and sale of the Notes to the Initial Purchasers and the offer, resale
and delivery of the Notes by the Initial Purchasers in the manner contemplated
by this Agreement and the Offering Memorandum, to register the Notes under the
Securities Act or to qualify the Indentures under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act").
(d) The Company and each of its Subsidiaries (as defined below),
have been duly incorporated or organized and are validly existing as
corporations or as limited liability companies, as the case may be, in good
standing under the laws of their respective jurisdictions of incorporation or
organization, have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are engaged,
and are duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership or lease
of property or the conduct of their respective businesses requires such
qualification, except where the failure to so qualify could not reasonably be
expected to have, singularly or in the aggregate, a material adverse effect on
the condition (financial or otherwise), results of operations, business or
prospects of the Company and its Subsidiaries taken as a whole (a "Material
Adverse Effect"), and no proceeding has been instituted in any such
jurisdiction, revoking, limiting or curtailing, or seeking to revoke, limit or
curtail, such power and authority or qualification, except such proceedings
which, if successful, could not reasonably be expected to have individually or
in the aggregate have a Material Adverse Effect. The Company owns at least 50%
of the outstanding capital stock or partnership interests, directly or
indirectly, of only the following corporations, associations, partnerships or
other entities (each a "Subsidiary" and, collectively, the "Subsidiaries"):
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Amkor International Holdings, Ltd., Amkor Wafer Fabrication Services S.A.R.L.,
Amkor Technology Euro Services, S.A.R.L., Amkor Technology Limited, Guardian
Assets, Inc., Amkor Technology Korea, Inc. ("AT Korea"), SemiSys Co., Ltd.,
P-Four, Inc. ("P-Four"), Amkor Technology Philippines, Inc., Amkor Technology
Hong Kong, Ltd., Amkor Technology Japan, K.K., Amkor Iwate Company, Ltd. (K.K.),
Amkor Assembly & Test (Shanghai) Co., Ltd., Amkor Technology Taiwan Limited,
Amkor Investments Holding Co. and Amkor Technology Greater China , Ltd, of which
only Amkor Investments Holding Co. and Guardian Assets, Inc. are the only
subsidiaries of the Company that are incorporated or organized under the laws of
any state of the United States.
(e) The Company has an authorized capitalization as set forth in
the Offering Memorandum, and all of the issued shares of capital stock of the
Company, have been duly and validly authorized and issued, are fully paid and
non-assessable.
(f) All the outstanding shares of capital stock of each Subsidiary
of the Company have been duly authorized and validly issued, are fully paid and
nonassessable and, except for directors or similar qualifying shares and except
that the Company owns 60% of the capital stock of Amkor Iwate Company, Ltd.
(K.K.), are owned by the Company directly or indirectly through one or more
wholly-owned subsidiaries, free and clear of any claim, lien, encumbrance,
security interest, restriction upon voting or transfer or any other claim of any
third party.
(g) The Company has full right, power and authority to execute and
deliver this Agreement, the Indenture, the Notes and the Registration Rights
Agreements (collectively, the "Transaction Documents") and to perform their
respective obligations hereunder and thereunder; all corporate action required
to be taken by the Company for the due and proper authorization, execution and
delivery of each of the Transaction Documents, and the consummation of the
transactions contemplated thereby have been duly and validly taken.
(h) The Indenture, when duly executed by the proper officers of
the Company and delivered by the Company, assuming due authorization, execution
and delivery thereof by the Trustee, will constitute a valid and binding
agreement of the Company enforceable against the Company in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing. The Offering Memorandum contains a fair summary of the principal terms
of the Indenture. On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act and the Rules
and Regulations applicable to an indenture which is qualified thereunder.
(i) The Notes, when duly executed, authenticated, issued and
delivered as provided in the Indenture, and upon payment and delivery in
accordance with this Agreement, and the Exchange Notes, when duly executed,
authenticated, issued and delivered as provided in the Indenture pursuant to the
Exchange Offer, will be duly and validly issued and outstanding and will
constitute valid and binding obligations of the Company entitled to the benefits
of the Indenture applicable thereto and enforceable in accordance with their
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing. The Offering Memorandum contains a fair summary of the principal terms
of the Notes.
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(j) Each of this Agreement and the Registration Rights Agreements
when duly executed by the proper officers of the Company and delivered by the
Company, assuming due authorization, execution and delivery thereof by the other
parties thereto, will constitute a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding
inequity or at law) and an implied covenant of good faith and fair dealing. The
Offering Memorandum contains a fair summary of the principal terms of this
Agreement and the Registration Rights Agreement.
(k) There is no franchise, lease, contract, agreement or document
required by the Securities Act or by the Rules and Regulations to be described
in the documents identified in the Offering Memorandum under the heading
"Incorporation of Certain Documents By Reference" (the "Incorporated Documents")
or to be filed as an exhibit thereto which is not described or filed therein as
required; and all descriptions of any such franchises, leases, contracts,
agreements or documents contained in the Incorporated Documents and/or the
Offering Memorandum, to the extent such franchises, leases, contracts,
agreements or documents are described therein, are accurate and complete
descriptions of such documents in all material respects.
(l) Neither the Company nor any of its Subsidiaries is or, after
giving effect to the offering of the Notes and the application of the proceeds
thereof as described in the Offering Memorandum, will become, an "investment
company" within the meaning of the Investment Company Act of 1940, as amended
and the rules and regulations of the Commission thereunder.
(m) Except for such consents, approvals, authorizations,
registrations or qualifications as may be required under applicable state or
foreign securities laws in connection with the purchase and distribution of the
Notes by the Initial Purchasers in the manner contemplated by this Agreement and
the Offering Memorandum or as may be required to be obtained under the
Securities Act as required by the Registration Rights Agreement, no consent,
approval, authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution, delivery and
performance of the Transaction Documents by the Company and the consummation of
the transactions contemplated thereby.
(n) There are no contracts, agreements or understandings between
the Company and any person (other than the Registration Rights Agreement)
granting such person the right to require the Company to include any of its
securities with the Notes or Exchange Notes registered pursuant to any Exchange
Offer Registration Statement or Shelf Registration Statement.
(o) Neither the issuance and sale of the Notes by the Company nor
the performance of the Company's obligations under the Transaction Documents nor
the fulfillment of the terms hereof or thereof will conflict with, or result in
a breach or violation of, or constitute a default under, or result in the
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to (i) the charter or by-laws of the
Company or any of its Subsidiaries, (ii) the terms or provisions of any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Subsidiaries is subject, or
(iii) any U.S. statute, law, rule, regulation, judgment, order or decree
applicable to the Company or any of its Subsidiaries of any court or
governmental agency or body having jurisdiction over the Company or any of its
Subsidiaries or any
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of their properties or assets, except any conflicts, breaches or violations
which, singularly or in the aggregate, would not be reasonably expected to have
a Material Adverse Effect.
(p) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries or its or their property or assets is pending or, to
the best of the Company's knowledge, threatened that could reasonably be
expected to have, singularly or in the aggregate, a material adverse effect on
the performance of the Transaction Documents or the consummation of any of the
transactions contemplated thereby or a Material Adverse Effect.
(q) Each of the Company and its Subsidiaries owns or leases all
such properties as are necessary to the conduct of its operations as presently
conducted, in each case free and clear of all liens, encumbrances, claims and
defects that would not be reasonably expected to result in a Material Adverse
Effect.
(r) Neither the Company nor any of its Subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any respect, and no
event has occurred and is continuing which, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its property or assets is subject, (iii)
is in violation in any respect of any statute, law, rule, regulation, judgment
order or decree of any court, governmental body, arbitrator or other authority
having jurisdiction over the Company, any such Subsidiary or any of their
respective properties or assets, or (iv) is in non-compliance with any term or
condition of, or has failed to obtain and maintain in effect, any license,
certificate, authorization or permit required for the ownership or lease of its
property or the conduct of its business, except any violations, defaults,
non-compliance or failures which, singularly or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.
(s) PriceWaterhouseCoopers LLP ("PWC"), who has expressed its
opinion on the audited consolidated financial statements of the Company and
related schedules as of December 31, 2001 and 2002 and for each of the years in
the three-year period ended December 31, 2002 incorporated by reference in the
Offering Memorandum are independent public accountants with respect to the
Company and its Subsidiaries within the meaning of the Securities Act and the
Rules and Regulations.
(t) Samil Accounting Corporation, an affiliate of PWC, who has
expressed its opinion on certain audited financial statements of AT Korea and
whose report thereof is incorporated by reference in the Offering Memorandum are
independent public accountants with respect to AT Korea, within the meaning of
the Securities Act and the Rules and Regulations.
(u) The historical consolidated financial statements of the
Company and its Subsidiaries, included in the Offering Memorandum (including,
for the avoidance of doubt, those incorporated by reference therein) present
fairly in all material respects the financial condition, results of operation
and cash flows of the Company and its Subsidiaries, on a consolidated basis, as
of the dates and for the periods indicated, comply as to form with the
accounting requirements of the Securities Act and the Rules and Regulations
applicable to a registration statement on Form S-1 and have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as otherwise noted therein). The
pro forma financial information and related notes incorporated by reference in
the Offering Memorandum have been prepared on a basis
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consistent with the historical financial statements included in the Offering
Memorandum (except for the pro forma adjustments specified therein), include all
material adjustments to the historical financial information that would be
required by Rule 11-02 of Regulation S-X under the Securities Act and the
Exchange Act if applicable to reflect the transactions described in the Offering
Memorandum, give effect to assumptions made on a reasonable basis and fairly
present the historical transactions described therein. The other financial and
statistical information and data included in the Offering Memorandum are, in all
material respects, fairly presented.
(v) To the best of the Company's knowledge, there are no transfer
taxes or other similar fees or charges under Federal law or the laws of any
state, or any political subdivision thereof, required to be paid in connection
with the execution and delivery of this Agreement or the sale by the Company of
the Notes.
(w) Neither the Company nor any of its Subsidiaries has been or is
in violation of any federal or state or foreign law or regulation relating to
occupational safety and health or to the storage, handling or transportation of
hazardous or toxic materials and the Company and its Subsidiaries have received
all permits, licenses or other approvals required of them under applicable
federal and state and foreign occupational safety and health and environmental
laws and regulations to conduct their respective businesses, and the Company and
each of its Subsidiaries is in compliance with all terms and conditions of any
such permit, license or approval, except any such violation of law or
regulation, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses or
approvals which could reasonably be expected to, singly or in the aggregate,
have a Material Adverse Effect.
(x) The Company and its Subsidiaries each (i) have filed all
federal, state, local and foreign income and franchise tax returns that are
required to be filed or have requested extensions thereof (except in any case in
which the failure so to file would not have a Material Adverse Effect), (ii)
have paid all federal, state, local and foreign taxes shown as payable on such
returns, to the extent that any of the foregoing is due and payable, except for
any such tax that is currently being contested in good faith or as would not
have a Material Adverse Effect, and (iii) do not have any tax deficiency or
claims outstanding or assessed or, to the best of the Company's knowledge,
proposed against it which could reasonably be expected to have a Material
Adverse Effect.
(y) No labor dispute with the employees of the Company or any of
its Subsidiaries exists or, to the best of the Company's knowledge, is
threatened that could reasonably be expected to have a Material Adverse Effect.
(z) The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent for the businesses in which they are engaged;
and neither the Company nor any such Subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a Material
Adverse Effect, except as described in or contemplated in the Offering
Memorandum.
(aa) No Subsidiary of the Company (excluding Amkor Iwate Company,
Ltd. , (K.K.)) is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such
Subsidiary's capital stock, from repaying to the Company any loans or advances
to such Subsidiary from the Company or from transferring any of such
Subsidiary's
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property or assets to the Company or any other Subsidiary of the Company, except
as described in or contemplated in the Offering Memorandum.
(bb) The Company and each of its Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(cc) The Company and each of its Subsidiaries owns or has obtained
licenses for the patents, patent applications, trade and service marks, trade
secrets and other intellectual properties referenced or described in the
Offering Memorandum as being owned by or licensed to them (collectively, the
"Intellectual Property") and (i) to the best of the Company's knowledge, there
are no rights of third parties to any such Intellectual Property owned by the
Company or any of its Subsidiaries; (ii) to the best of the Company's knowledge,
there is no material infringement by third parties of any such Intellectual
Property; (iii) there is no pending or, to the best of the Company's knowledge,
threatened action, suit, proceeding or claim by others challenging the rights of
the Company or any of its Subsidiaries in or to any such Intellectual Property,
and the Company is unaware of any facts which would form a reasonable basis for
any such claim; (iv) there is no pending or, to the best of the Company's
knowledge, threatened action, suit, proceeding or claim by others challenging
the validity or scope of any such Intellectual Property; (v) there is no pending
or, to the best of the Company's knowledge, threatened action, suit, proceeding
or claim by others that the Company or any of its Subsidiaries infringes or
otherwise violates any patent, trademark, copyright, trade secret or other
proprietary rights of others; (vi) to the best of the Company's knowledge, there
is no U.S. patent or published U.S. patent application which contains claims
that dominate or may dominate any Intellectual Property described in the
Offering Memorandum as being owned by or licensed to the Company or any of its
Subsidiaries that interferes with the issued or pending claims of any such
Intellectual Property; and (vii) there is no prior art of which the Company is
aware that may render any U.S. patent held by the Company or any of its
Subsidiaries invalid or any U.S. patent application held by the Company or any
of its Subsidiaries unpatentable which has not been disclosed to the U.S. Patent
and Trademark Office, in each case of clauses (i) through (vii), that could
reasonably be expected to result in a Material Adverse Effect. Each of the
Company and its Subsidiaries owns or could obtain the Intellectual Property or
has the rights to the Intellectual Property that is necessary to conduct the
Company's business as described in the Offering Memorandum.
(dd) None of the Company nor any of its affiliates or any other
person acting on its or their behalf has engaged, in connection with the
offering of the Notes, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) of Regulation D ("Regulation D")
under the Securities Act.
(ee) Neither the Company nor any of its affiliates has, directly or
through any agent, sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as such term is defined in the
Securities Act), which is or will be integrated with the sale of the Notes in a
manner that would require registration of the Notes under the Securities Act.
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(ff) The Notes satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(gg) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf has engaged in any directed selling efforts with
respect to the Notes, and each of them has complied with the offering
restrictions requirement of Regulation S. Terms used in this paragraph have the
meanings given to them by Regulation S.
(hh) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange Act.
(ii) Neither the Company nor its affiliated purchasers, as defined
in Rule 100 of Regulation M ("Regulation M") under the Exchange Act, either
alone or with one or more other persons, (i) has taken, either directly or
indirectly, any action which was designed to cause or result in, stabilization
or manipulation of the price of any security of the Company ("Subject
Securities") in connection with the offering of the Notes or (ii) will bid for
or purchase any Subject Securities of the Company or any other covered
securities (within the meaning of Regulation M) relating to the Subject
Securities (together with Subject Securities, "Covered Securities"), or attempt
to induce any person to bid for or purchase any Covered Securities, in either
case, for the purpose of creating actual or apparent active trading in, or
raising the price of the Notes.
(jj) There are no material outstanding loans, advances (except
normal advances for business expenses in the ordinary course of business) or
guarantees of indebtedness by the Company or any of its Subsidiaries to or for
the benefit of any of the officers or directors of the Company or any of its
Subsidiaries or any of the members of the families of any of them, which loans,
advances or guarantees are required to be, and are not, disclosed in the
Incorporated Documents.
(kk) There have not been, and there are not proposed, (i) any
material transactions or agreements between the Company or any of its
Subsidiaries on the one hand and the officers, directors or stockholders of the
Company or any of its Subsidiaries on the other hand, or (ii) any material
transactions or agreements between the Company on the one hand and any of its
Subsidiaries on the other hand, or among any of the Company's Subsidiaries,
which transactions or agreements are required to be, and are not, disclosed in
the Incorporated Documents.
(ll) No officer or director of the Company is in breach or
violation of any employment agreement, non-competition agreement,
confidentiality agreement or other agreement restricting the nature or scope of
employment to which such officer or director is a party, other than such
breaches or violations which could not reasonably be expected to, individually
or in the aggregate, have a Material Adverse Effect.
(mm) Neither the Company nor any of its Subsidiaries has sustained,
since the date of the latest audited financial statements included in (or, for
the avoidance of doubt, incorporated by reference in) the Offering Memorandum,
any material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree; and, since such date,
there has not been any change in the capital stock or long-term debt of the
Company or any of its Subsidiaries or any development which could reasonably be
expected to have a Material Adverse Effect, otherwise than as set forth or
contemplated in the Offering Memorandum.
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(nn) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section 4975
of the Internal Revenue Code of 1986, as amended from time to time (the "Code"))
or "accumulated funding deficiency" (as defined in Section 302 of ERISA) or any
of the events set forth in Section 4043(b) of ERISA (other than events with
respect to which the 30-day notice requirement under Section 4043 of ERISA has
been waived) has occurred with respect to any employee benefit plan which could
reasonably be expected to have a Material Adverse Effect; each employee benefit
plan is in compliance in all material respects with applicable law, including
ERISA and the Code; the Company has not incurred and does not expect to incur
liability under Title IV of ERISA with respect to the termination of, or
withdrawal from, any "pension plan"; and each "pension plan"(as defined in
ERISA) for which the Company would have any liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act, which
could cause the loss of such qualification.
(oo) The minute books of the Company and each of its subsidiaries
have been made available to the Initial Purchasers and counsel for the Initial
Purchasers, and such books contain a fair summary of all meetings and actions of
the directors and shareholders of the Company and each of its subsidiaries since
the time of its respective incorporation through the date of the latest meeting
and action.
(pp) On and immediately after the Closing Date (as defined below),
the Company (after giving effect to the issuance of the Notes and to the other
transactions related thereto as described in the Offering Memorandum) will be
Solvent. As used in this paragraph, the term "Solvent" means, with respect to a
particular date, that on such date (i) the present fair market value (or present
fair saleable value) of the assets of the Company is not less than the total
amount required to pay the probable liabilities of the Company on its total
existing debts and liabilities (including contingent liabilities) as they become
absolute and matured, (ii) the Company is able to realize upon its assets and
pay its debts and other liabilities, contingent obligations and commitments as
they mature and become due in the normal course of business, (iii) assuming the
sale of the Notes as contemplated by this Agreement and the Offering Memorandum,
the Company is not incurring debts or liabilities beyond its ability to pay as
such debts and liabilities mature and (iv) the Company is not engaged in any
business or transaction, and is not about to engage in any business or
transaction, for which its property would constitute unreasonably small capital
after giving due consideration to the prevailing practice in the industry in
which the Company is engaged. In computing the amount of such contingent
liabilities at any time, it is intended that such liabilities will be computed
at the amount that, in the light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
(qq) Neither the Company nor any of its Subsidiaries own any
"margin securities" as that term is defined in Regulations of the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board"), and none
of the proceeds of the sale of the Notes will be used, directly or indirectly,
for the purpose of purchasing or carrying any margin security, for the purpose
of reducing or retiring any indebtedness which was originally incurred to
purchase or carry any margin security or for any other purpose which might cause
any of the Notes to be considered a "purpose credit" within the meanings of
Regulation T, U or X of the Federal Reserve Board.
(rr) Neither the Company nor any of its Subsidiaries is a party to
any contract, agreement or understanding with any person that would give rise to
a valid claim against the Company or the
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Initial Purchasers for a brokerage commission, finder's fee or like payment in
connection with the offering and sale of the Notes.
(ss) No forward-looking statement (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act) contained in the
Offering Memorandum has been made for which the Company's management did not
have a reasonable basis.
(tt) Neither the Company nor any of its Subsidiaries nor, to the
best of the Company's knowledge, any employee or agent of the Company of any of
its Subsidiaries, has made any contribution or other payment to any official of,
or candidate for, any federal, state or foreign office in violation of any law
which could reasonably be expected to have a Material Adverse Effect.
3. Purchase, Sale and Delivery of Offered Notes.
(a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to each Initial Purchaser, and each Initial
Purchaser agrees, severally and not jointly, to purchase from the Company, at a
purchase price of 98.125% of the principal amount thereof with respect to the
Notes, plus accrued interest, if any, from May 8, 2003, to the Closing Date, the
principal amount of Notes set forth opposite the name of such Initial Purchaser
on Schedule I hereto. The Company shall not be obligated to deliver any of the
Notes except upon payment for all of the Notes to be purchased as provided
herein. Delivery of and payment for the Notes shall be made at the offices of
Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at
such other place as shall be agreed upon by Citigroup Global Markets Inc. and
the Company, at 10:00 A.M., New York City time, on May 8, 2003, or at such other
date or time as shall be agreed upon by Citigroup Global Markets Inc. and the
Company (such date and time being referred to herein as the "Closing Date").
The Notes to be purchased by each Initial Purchaser hereunder and sold
to Qualified Institutional Buyers (as defined below) shall be represented by one
or more global notes (the "144A Global Notes") in book-entry form. The Notes to
be purchased by each Initial Purchaser hereunder and sold by the Initial
Purchasers in reliance on Regulation S of the Act shall be represented by one of
more global notes (the "Regulation S Global Notes," and together with the 144A
Global Notes, the "Global Notes") in book-entry form. On the Closing Date, the
Company shall deliver or cause to be delivered the Notes to Citigroup Global
Markets Inc. for the account of each Initial Purchaser against payment to or
upon the order of the Company of the purchase price by wire transfer payable in
Federal (same-day) funds by causing The Depository Trust Company to credit the
Notes to the accounts designated by Citigroup Global Markets Inc. at The
Depository Trust Company.
(b) The Initial Purchasers have advised the Company that they
propose to offer the Notes for resale (the "Exempt Resales") upon the terms and
subject to the conditions set forth herein and in the Offering Memorandum. Each
Initial Purchaser, severally and not jointly, represents, warrants and agrees
that (i) it is purchasing the Notes pursuant to a private sale exempt from
registration under the Securities Act, (ii) it has not solicited offers for, or
offered or sold, and will not solicit offers for, or offer or sell, the Notes by
means of any form of general solicitation or general advertising within the
meaning of Rule 502(c) of Regulation D or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act and (iii) it
has solicited and will solicit offers for the Notes, and has offered or sold and
will offer, sell or deliver the Notes, as part of their initial offering, only
(A) within the United States to persons whom it reasonably believes to be
qualified institutional
10
buyers ("Qualified Institutional Buyers"), as defined in Rule 144A, or if any
such person is buying for one or more institutional accounts for which such
person is acting as fiduciary or agent, only when such person has represented to
it that each such account is a Qualified Institutional Buyer to whom notice has
been given that such sale or delivery is being made in reliance on Rule 144A and
in each case, in transactions in accordance with Rule 144A or (B) outside the
United States to persons other than U.S. persons in reliance on Regulation S
(such persons specified in clauses (A) and (B) being referred herein as the
"Eligible Purchasers").
(c) In connection with the offer and sale of Notes in reliance on
Regulation S, each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) The Notes have not been registered under the
Securities Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons except pursuant
to an exemption from, or in transactions not subject to, the
registration requirements of the Securities Act.
(ii) Such Initial Purchaser has offered and sold the
Notes, and will offer and sell the Notes, (A) as part of their
distribution at any time and (B) otherwise until 40 days after the
later of the commencement of the offering of the Notes and the Closing
Date, only in accordance with Regulation S or Rule 144A or any other
available exemption from registration under the Securities Act.
(iii) None of such Initial Purchaser or any of its
affiliates or any other person acting on its or their behalf has
engaged or will engage in any directed selling efforts with respect to
the Notes, and all such persons have complied and will comply with the
offering restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any Notes
sold in reliance on Regulation S, it will have sent to each
distributor, dealer or other person receiving a selling concession, fee
or other remuneration that purchase Notes from it during the restricted
period a confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (the "Securities
Act"), and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons (i) as
part of their distribution at any time or (ii) otherwise until
40 days after the later of the commencement of the offering of
the Securities and the date of original issuance of the
Securities, except in accordance with Regulation S or Rule
144A or any other available exemption from registration under
the Securities Act. Terms used above have the meanings given
to them by Regulation S."
Terms used in this Section 3(c) have the meanings given to them by Regulation S.
(d) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that (i) it has not offered or sold and, prior to the expiry
of a period of six months from the closing of the offering of the Notes, will
not offer or sell any Notes included in this offering to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the
11
United Kingdom within the meaning of the Public Offers of Securities Regulations
1995; (ii) it has only communicated and caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to engage
in investment activity (within the meaning of section 21 of the Financial
Services and Markets Act 2000 ("FSMA")) received by it in connection with the
issue or sale of any notes included in this offering in circumstances in which
section 21(1) of the FSMA does not apply to the Company; and (iii) it has
complied and will comply with all applicable provisions of the FSMA with respect
to anything done by it in relation to the Notes included in this offering in,
from or otherwise involving the United Kingdom.
(e) Each Initial Purchaser, severally and not jointly, agrees
that, (i) prior to or simultaneously with the confirmation of sale by such
Initial Purchaser to any purchaser of any of the Notes purchased by such Initial
Purchaser from the Company pursuant hereto, such Initial Purchaser shall furnish
to that purchaser a copy of the Offering Memorandum (and any amendment or
supplement thereto that the Company shall have furnished to such Initial
Purchaser prior to the date of such confirmation of sale), and (ii) any
information provided by the Initial Purchasers to publishers of publicly
available databases about the terms of the Notes shall include a statement that
the Notes have not been registered under the Act and are subject to restrictions
under Rule 144A and Regulation S. In addition to the foregoing, each Initial
Purchaser acknowledges and agrees that the Company and, for purposes of the
opinions to be delivered to the Initial Purchasers pursuant to Sections 6(d) and
(h), counsel for the Company and for the Initial Purchasers, respectively, may
rely upon the accuracy of the representations and warranties of the Initial
Purchasers and their compliance with their agreements contained in this Section
3, and each Initial Purchaser hereby consents to such reliance.
(f) The Company acknowledges and agrees that the Initial
Purchasers may sell Notes to any affiliate of an Initial Purchaser and that any
such affiliate may sell Notes purchased by it to an Initial Purchaser.
4. Further Agreements of the Company. The Company agrees with
each of the several Initial Purchasers:
(a) To advise the Initial Purchasers promptly and, if requested,
confirm such advice in writing, of the happening of any event which makes any
statement of a material fact made in the Offering Memorandum untrue or which
requires the making of any additions to or changes in the Offering Memorandum
(as amended or supplemented from time to time) in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; to advise the Initial Purchasers promptly of any order preventing or
suspending the use of the Offering Memorandum, of any suspension of the
qualification of the Notes for offering or sale in any jurisdiction and of the
initiation or threatening of any proceeding for any such purpose; and to use its
best efforts to prevent the issuance of any such order preventing or suspending
the use of the Offering Memorandum or suspending any such qualification and, if
any such suspension is issued, to obtain the lifting thereof at the earliest
possible time.
(b) To furnish promptly to each of the Initial Purchasers and to
counsel for the Initial Purchasers, without charge, as many copies of the
Offering Memorandum (and any amendments or supplements thereto) as may be
reasonably requested.
(c) Prior to making any amendment or supplement to the Offering
Memorandum or filing any document to be incorporated by reference therein prior
to the Closing Date, to furnish a
12
copy thereof to each of the Initial Purchasers and counsel for the Initial
Purchasers and not to effect any such amendment or supplement or make any filing
to which the Initial Purchasers shall reasonably object by notice to the Company
after a reasonable period to review.
(d) If, at any time prior to completion of the resale of the Notes
by the Initial Purchasers, any event shall occur or condition exist as a result
of which it is necessary, in the opinion of counsel for the Initial Purchasers
or counsel for the Company, to amend or supplement the Offering Memorandum in
order that the Offering Memorandum will 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 existing at the time it is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Offering Memorandum to comply with applicable law, to promptly
prepare such amendment or supplement as may be necessary to correct such untrue
statement or omission or so that the Offering Memorandum, as so amended or
supplemented, will comply with applicable law.
(e) For so long as the Notes are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, to
furnish to holders of the Notes and prospective purchasers of the Notes
designated by such holders, upon request of such holders or such prospective
purchasers, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act, unless the Company is then subject to and in
compliance with Section 13 or 15(d) of the Exchange Act (the foregoing agreement
being for the benefit of the holders from time to time of the Notes and
prospective purchasers of the Notes designated by such holders).
(f) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf will engage in any directed selling efforts with
respect to the Notes, and each of them will comply with the offering
restrictions requirement of Regulation S. Terms used in this paragraph have the
meanings given to them in Regulation S.
(g) Any information provided by the Company to the publishers of
publicly available databases about the terms of the Notes shall include a
statement that the Notes (excluding the Exchange Notes) have not been registered
under the Act and are subject to the restrictions under Rule 144A and Regulation
S.
(h) To promptly take from time to time such actions as the Initial
Purchasers may reasonably request to qualify the Notes for offering and sale
under the securities or Blue Sky laws of such jurisdictions as the Initial
Purchasers may designate and to continue such qualifications in effect for so
long as required for the distribution of the Notes; provided that the Company
and its Subsidiaries shall not be obligated to qualify as foreign corporations
in any jurisdiction in which they are not so qualified or to file a general
consent to service of process in any jurisdiction.
(i) During the period of five years from the date hereof, the
Company will deliver to the Initial Purchasers, (i) as soon as they are
available, copies of all reports or other communications furnished to
shareholders and (ii) as soon as they are available, copies of any reports and
financial statements furnished or filed with the Commission pursuant to the
Exchange Act or any national securities exchange or automatic quotation system
on which the Notes or any class of securities of the Company are listed or
quoted.
(j) During the period of 90 days from the date hereof, other than
with respect to the Notes, any Exchange Notes and any other non-capital markets
debt permitted under the Indenture,
13
the Company will not, without the prior written consent of Citigroup Global
Markets Inc., offer, sell, contract to sell, grant any other option to purchase
or otherwise dispose of, directly or indirectly, or announce the offering of any
debt securities issued or guaranteed by the Company or any of its direct or
indirect subsidiaries, or enter into any agreement to do any of the foregoing.
(k) To assist the Initial Purchasers in arranging for the Notes to
be designated Private Offerings, Resales and Trading through Automated Linkages
("PORTAL") Market securities in accordance with the rules and regulations
adopted by the National Association of Securities Dealers, Inc. ("NASD")
relating to trading in the PORTAL Market and for the Notes to be eligible for
clearance and settlement through The Depository Trust Company ("DTC").
(l) Not to, and use reasonable efforts to cause its affiliates not
to, sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as such term is defined in the Securities Act) which
could be integrated with the sale of the Notes in a manner which would require
registration of the Notes under the Securities Act.
(m) Except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
not to, and to cause its affiliates not to, and not to authorize or knowingly
permit any person acting on their behalf to, solicit any offer to buy or offer
to sell the Notes by means of any form of general solicitation or general
advertising within the meaning of Regulation D or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act; and
not to offer, sell, contract to sell or otherwise dispose of, directly or
indirectly, any securities under circumstances where such offer, sale, contract
or disposition would cause the exemption afforded by Section 4(2) of the
Securities Act to cease to be applicable to the offering and sale of the Notes
as contemplated by this Agreement and the Offering Memorandum.
(n) During the period from the Closing Date until two years after
the Closing Date, without the prior written consent of the Initial Purchasers,
not to, and not permit any of its affiliates (as defined in Rule 144 under the
Securities Act) to, resell any of the Notes that have been reacquired by them,
except for Notes purchased by the Company or any of its affiliates and resold in
a transaction registered under the Securities Act.
(o) Prior to the Closing Date, the Company will furnish to the
Initial Purchasers, promptly following the time they have been publicly
released, copies of any unaudited interim consolidated financial statements of
the Company for any periods subsequent to the periods covered by the financial
statements appearing in the Offering Memorandum.
(p) Prior to the Closing Date, the Company will not issue any
press release or other public communication directly or indirectly or hold any
press conference with respect to the Company, its condition, financial or
otherwise, or earnings, business affairs or business prospects (except for
routine oral marketing communications in the ordinary course of business and
consistent with the past practices of the Company and of which the Initial
Purchasers are notified), without consultation with Citigroup Global Markets
Inc., unless in the judgment of the Company and its counsel, and after
notification to the Initial Purchasers, such press release or public
communication is required by law.
(q) In connection with the offering of the Notes, until Citigroup
Global Markets Inc. shall have notified the Company of the completion of the
resale of the Notes, the Company will not, and will cause its affiliated
purchasers (as defined in Regulation M under the Exchange Act) not to, either
14
alone or with one or more other persons, bid for or purchase, for any account in
which it or any of its affiliated purchasers has a beneficial interest, any
Notes, or attempt to induce any person to purchase any Notes; and not to, and to
cause its affiliated purchasers not to, make bids or purchase for the purpose of
creating actual, or apparent, active trading in or of raising the price of the
Notes.
(r) The Company will not take any action prior to the Closing Date
which would require the Offering Memorandum to be amended or supplemented
pursuant to Section 4(d).
(s) The Company will apply the net proceeds from the sale of the
Notes as set forth in the Offering Memorandum under the heading "Use of
Proceeds".
(t) The Company will not, for so long as the Notes are
outstanding, be or become, or be or become owned by, an open-end investment
company, unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company Act, and
will not be or become, or be or become owned by, a closed-end investment company
required to be registered, but not registered thereunder.
(u) In connection with the offering of the Notes, until the
earlier to occur of (i) the date Citigroup Global Markets Inc. shall have
notified the Company of the completion of the resale of the Notes or (ii) 30
days following the Closing Date, the Company will make its officers, employees,
independent accountants and legal counsel reasonably available upon request by
Citigroup Global Markets Inc.
(v) To not take any action prior to the execution and delivery of
the Indentures which, if taken after such execution and delivery, would have
violated any of the covenants contained in the Indentures.
(w) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter 92-198,
An Act Relating to Disclosure of Doing Business with Cuba, and the Company
further agrees that if it commences engaging in business with the government of
Cuba or with any person or affiliate located in Cuba after the date of the
Offering Memorandum, or if the information reported in the Incorporated
Documents, if any, concerning the Company's business with Cuba or with any
person or affiliate located in Cuba changes in any material way, the Company
will provide the Florida Department of Banking and Finance (the "Department")
notice of such business or change, as appropriate, in a form acceptable to the
Department.
5. Payment of Expenses. The Company agrees with the Initial
Purchasers to pay (a) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Notes to the Initial Purchasers or pursuant to
any initial resale permitted by this Agreement and any transfer or other taxes
payable in that connection; (b) the costs incident to the preparation, printing
and distribution of the Offering Memorandum and any amendments and exhibits
thereto, the costs of printing, reproducing and distributing the applicable
Transaction Documents by mail, telex or other means of communications; (c) all
expenses incurred in connection with the application for quotation of the Notes
on the PORTAL Market and the approval of the Notes for book-entry transfer by
The Depository Trust Company; (d) any applicable listing or other fees; (e) the
fees and expenses of qualifying the Notes under the securities laws of the
several jurisdictions as provided in Section 4(h) and of preparing, printing and
distributing Blue Sky Memoranda and Legal Investment Surveys (including related
fees and expenses of counsel to the Initial Purchasers); (f) all fees and
expenses of
15
the Trustees or any agent thereof; (g) any fees charged by securities rating
services for rating the Notes; and (h) all other costs and expenses incident to
the performance of the obligations of the Company under this Agreement
(including, without limitation, the fees and expenses of the Company's counsel
and the Company's independent accountants); provided that, except as otherwise
provided in this Section 5 and in Section 9, the Initial Purchasers shall pay
their own costs and expenses, including the fees and expenses of their counsel
and the expenses of advertising any offering of the Notes made by the Initial
Purchasers.
6. Conditions of Initial Purchasers' Obligations. The respective
obligations of the several Initial Purchasers hereunder are subject to the
accuracy in all material respects, when made and on the Closing Date, of the
representations and warranties of the Company contained herein, to the accuracy
in all material respects of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder, and to each of the following additional
terms and conditions:
(a) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchasers as promptly as practicable on or following the date of this Agreement
or at such other date and time as to which the Company and the Initial
Purchasers may agree; and no stop order suspending the sale of the Notes in any
jurisdiction shall have been issued and no proceeding for that purpose shall
have been commenced or shall be pending or threatened.
(b) None of the Initial Purchasers shall have discovered and
disclosed to the Company on or prior to the Closing Date that the Offering
Memorandum or any amendment or supplement thereto contains an untrue statement
of a fact which, in the opinion of counsel for the Initial Purchasers, is
material or omits to state any fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading, which has not, with the consent of the
Initial Purchasers, been corrected in an amendment or supplement to the Offering
Memorandum prior to the Closing Date as required pursuant to Section 4(d)
hereof.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of each of each of the Transaction
Documents, the Offering Memorandum and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Initial Purchasers, and
the Company shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such matters.
(d) ▇▇▇▇▇▇, Sonsini, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Professional Corporation
shall have furnished to the Initial Purchasers such counsel's written opinion,
as counsel to the Company, addressed to the Initial Purchasers and dated the
Closing Date, in form and substance reasonably satisfactory to the Initial
Purchasers, to the effect that:
i. The Company and Amkor Investments Holding Co. and
Guardian Assets, Inc. (Amkor Investments Holding Co. and Guardian Assets, Inc.
are collectively referred to as the "U.S. Subsidiaries") each has been duly
incorporated or organized and is validly existing as a corporation in good
standing under the laws of their respective jurisdictions of incorporation or
organization, with full power and authority to own or hold its properties and to
conduct its business as described in the Offering Memorandum.
16
ii. The Company has an authorized capitalization as set
forth in the Offering Memorandum.
iii. All the outstanding shares of capital stock of each
U.S. Subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable.
iv. The Company has full right, power and authority to
execute and deliver each of the Transaction Documents and to perform its
obligations thereunder; and all corporate action required to be taken for the
due and proper authorization, execution and delivery of each of the Transaction
Documents to which the Company is a party and the consummation of the
transactions contemplated thereby have been duly and validly taken.
v. This Agreement, the Notes, the Indenture and the
Registration Rights Agreement have been duly authorized, executed and delivered
by the Company.
vi. The statements made in the Offering Memorandum under
the headings "Description of Certain Indebtedness," "Certain United States
Federal Income Tax Considerations," "Description of Notes," "Exchange Offer,
Registration Rights," and "Plan of Distribution" (other than the Initial
Purchasers' Information) and insofar as they purport to constitute a summary of
the legal matters, provisions of federal statutes or documents referred to
therein, fairly summarize such legal matters or provisions of federal statutes
and the principal terms of the Transaction Documents in all material respects.
vii. Except for such consents, approvals, authorizations,
registrations or qualifications as may be required under applicable state
securities laws (or federal securities laws in the case of the Registration
Rights Agreement) in connection with the purchase and distribution of the Notes
by the Initial Purchasers in the manner contemplated by this Agreement and the
Offering Memorandum, no consent, approval, authorization or order of, or filing
or registration with, any U.S. court, governmental agency or body is required
for the execution, delivery and performance of the Transaction Documents (other
than performance of the Indenture and the Registration Rights Agreement as
provided therein) by the Company and the consummation of the transactions
contemplated thereby, except where the failure to obtain such consents,
approvals, authorizations or orders or make such filings or registrations could
not reasonably be expected to have a Material Adverse Effect.
viii. Neither the issue and sale of the Notes nor the
performance of the Company's obligations under the Transaction Documents nor the
fulfillment of the terms thereof will conflict with or result in a breach or
violation of or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of the U.S. Subsidiaries pursuant to (i) the
charter or by-laws of the Company or any U.S. Subsidiary, (ii) any U.S.,
California, Delaware or New York statute, law, rule, regulation, judgment, order
or decree known to such counsel applicable to the Company or any of the U.S.
Subsidiaries of any U.S., California, Delaware, New York court or governmental
agency or body having jurisdiction over the Company or any of the U.S.
Subsidiaries or any of their property or assets, or (iii) the terms or
provisions of any indenture, loan agreement, security agreement or other
agreement or instrument relating to indebtedness as described in the Offering
Memorandum under the heading "Description of Certain Indebtedness."
ix. The Company is not and, after giving effect to the
offering and sale of the Notes and the application of the proceeds thereof as
described in the Offering Memorandum under
17
the heading "Use of Proceeds," will not be an "investment company" within the
meaning of the Investment Company Act and the rules and regulations of the
Commission thereunder.
x. Assuming the accuracy of the representations,
warranties and agreements of the Company and of the Initial Purchasers contained
in this Agreement, no registration of the Notes under the Securities Act or
qualification of the Indenture under the Trust Indenture Act is required in
connection with the issuance and sale of the Notes of the Company and the offer,
resale and delivery of the Notes by the Initial Purchasers in the manner
contemplated by this Agreement and the Offering Memorandum.
xi. Assuming due authorization, execution and delivery
thereof by the Trustee, the Indenture constitutes a valid and legally binding
agreement of the Company enforceable against the Company in accordance with its
terms, except to the extent limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
xii. The Notes, when authenticated in accordance with the
terms of the Indenture and upon payment and delivery in accordance with this
Agreement, will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms, except to the
extent limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether considered in a
proceeding in equity or at law) and will be entitled to the benefits of the
Indenture under which they are issued.
xiii. The Exchange Notes have been duly and validly
authorized by the Company and if and when duly issued and authenticated in
accordance with the terms of the Indenture and delivered in accordance with the
Exchange Offer provided for in the Registration Rights Agreement, and assuming
due authentication of the Exchange Notes by the Trustee, will constitute valid
and binding obligations of the Company and enforceable against the Company in
accordance with their terms, except to the extent limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at law)
and will be entitled to the benefits of the Indenture under which they are
issued.
xiv. Assuming due authorization, execution and delivery
thereof by the Initial Purchasers, the Registration Rights Agreement constitutes
a valid and legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except to the extent limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at law)
and except that rights to indemnification and contribution thereunder may be
limited by federal or state securities laws or public policy related thereto.
xv. To the knowledge of such counsel, there is no pending
action, suit or proceeding, or any written threat thereof, by or before any
court or governmental agency, authority or body or any arbitrator involving the
Company or any of the U.S. Subsidiaries that is not disclosed in the Offering
Memorandum except in each case for such proceedings that, would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse
Effect.
18
xvi. Such counsel has participated in conferences with
officers and other representatives of the Company, representatives of the
independent certified public accountants of the Company and the Initial
Purchasers and its representatives at which the contents of the Offering
Memorandum and related matters 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 Offering Memorandum (except as
indicated above), on the basis of the foregoing, no facts have come to such
counsel's attention which led such counsel to believe that the Offering
Memorandum, as of its date or the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
required or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (except as to financial
statements and schedules and other financial and statistical data included
therein).
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent they deem proper, on certificates of responsible officers of the
Company and the U.S. Subsidiaries and public officials. Such opinion may also
contain customary qualifications and limitations. References to the Offering
Memorandum in this paragraph (d) include any amendments or supplements thereto
at the Closing Date.
(e) ▇▇▇▇▇ ▇▇▇▇▇, Esq., the General Counsel of the Company, shall
have furnished to the Initial Purchasers such counsel's written opinion, as
counsel to the Company, addressed to the Initial Purchasers and dated the
Closing Date, in form and substance reasonably satisfactory to the Initial
Purchasers, to the effect that:
i. Neither the issue and sale of the Notes nor the
performance of the Company's obligations under this Agreement, the Indenture,
the Notes or the Registration Rights Agreement nor the fulfillment of the terms
hereof or thereof will conflict with, or result in a breach or violation of,
constitute a default under, or result in the imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the
Subsidiaries pursuant to (i) the charter or by-laws of the Company or any
Subsidiary, or (ii) the terms or provisions of any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any Subsidiary is a party or bound or to which any of the property or assets of
the Company or any Subsidiary is subject, except breaches or violations which,
either individually or in the aggregate, would not have a Material Adverse
Effect, or (iii) any Pennsylvania statute, law, rule, regulation, judgment,
order or decree applicable to the Company or any Subsidiary of any Pennsylvania
court or governmental agency or body having jurisdiction over the Company or any
of its Subsidiaries or any of their properties or assets.
ii. To the best of such counsel's knowledge and other
than as set forth in the Offering Memorandum, no action, suit or proceeding by
or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of the Subsidiaries or its or their property or
assets is pending which, singularly or in the aggregate, if determined adversely
to the Company or any of the Subsidiaries, might have a Material Adverse Effect
or would prevent or adversely affect the ability of the Company to perform its
obligations under the Transaction Documents; and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
iii. Except to the extent set forth in the Offering
Memorandum and except for directors or similar qualifying shares and except that
the Company owns 60% of the capital stock of Amkor Iwate Company, Ltd. (K.K.),
all the outstanding shares of capital stock of each Subsidiary are
19
owned by the Company directly or indirectly through one or more wholly owned
subsidiaries, free and clear of any claim, lien, encumbrance, security interest,
restriction upon voting or transfer or any other claim of any third party. In
rendering such opinion, such counsel may rely as to matters involving the
application of laws of any jurisdiction other than the State of Pennsylvania,
the United States or the corporate laws of the State of Delaware, to the extent
he deems proper and specifies in such opinion, upon the opinion of other counsel
of good standing whom he believes to be reliable and who are satisfactory to
counsel for the Initial Purchasers. Such opinion may also contain customary
qualifications and limitations. References to the Offering Memorandum in this
paragraph (e) include any supplements thereto at the Closing Date.
(f) ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, Bacorro, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ Law
Offices, Philippines counsel for the Company, shall have furnished to the
Initial Purchasers such counsel's written opinion, as counsel to the Company,
addressed to the Initial Purchasers and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers, substantially to
the effect that:
i. Each of the Subsidiaries incorporated or organized
under the laws of the Philippines (the "Philippines Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the Philippines, with full corporate power and authority to own or hold
its properties and to conduct the businesses in which it is engaged.
ii. All the outstanding shares of capital stock of each
Philippines Subsidiary have been duly authorized and validly issued, are fully
paid and non assessable and, except such shares of each Philippines Subsidiary
owned by directors thereof, which shares in each case do not exceed 0.1% of the
outstanding shares of such Subsidiary, are owned by the Company directly or
indirectly through one or more wholly-owned subsidiaries, free and clear of any
claim, lien, encumbrance, security interest, restriction upon voting or transfer
or any other claim of any third party.
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent they deem proper on certificates of responsible officers of the
Company and public officials. Such opinion may also contain customary
qualifications and limitations. References to the Offering Memorandum in this
paragraph (f) include any amendments or supplements thereto at the Closing Date.
(g) ▇▇▇ & ▇▇▇▇▇, Korean Counsel for the Company, shall have
furnished to the Initial Purchasers such counsel's written opinion, as counsel
to the Company, addressed to the Initial Purchasers and dated the Closing Date,
in form and substance reasonably satisfactory to the Initial Purchasers,
substantially to the effect that:
i. Any Subsidiaries incorporated or organized under the
laws of the Republic of Korea (the "Korean Subsidiaries") has been duly
incorporated and is validly existing as a corporation under the laws of the
Republic of Korea, with full corporate power and authority to own or hold its
properties and to conduct the businesses in accordance with its Articles of
Incorporation.
ii. All the outstanding shares of capital stock of each
Korean Subsidiary have been duly authorized and validly issued, are fully paid
and nonassessable, and, in the case of each Korean Subsidiary, are owned by the
Company directly or indirectly through one or more wholly-owned subsidiaries,
free and clear of any claim, lien, encumbrance, security interest, restriction
upon voting or transfer or any other claim of any third party.
20
In rendering such opinion, such counsel may rely as to matters of fact,
the extent they deem proper, on certificates of responsible officers of, each
Korean Subsidiary and the Company and public officials. Such opinion may also
contain customary qualifications and limitations. References to the Offering
Memorandum in this paragraph (g) include any amendments and supplements there to
at the Closing Date.
(h) The Initial Purchasers shall have received from ▇▇▇▇, Gotshal
& ▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions,
dated the Closing Date, with respect to such matters as the Initial Purchasers
may reasonably require, and the Company shall have furnished to such counsel
such documents as they request for enabling them to pass upon such matters.
(i) At the time of the execution of this Agreement, the Initial
Purchasers shall have received from PWC oral confirmation that on the Closing
Date the Initial Purchasers will receive from PWC a letter, addressed to the
Initial Purchasers and dated the Closing Date, in form and substance
satisfactory to the Initial Purchasers (i) confirming that they are the
independent certified public accountants with respect to the Company and its
Subsidiaries within the meaning of the Securities Act and the Rules and
Regulations and (ii) stating the conclusions and findings of such firm with
respect financial statements and certain financial information as of and for the
years ended December 31, 2000, 2001 and 2002 and the unaudited financial
information as of and for the quarter ended March 31, 2003 contained in the
Offering Memorandum.
(j) On the Closing Date, the Initial Purchasers shall have
received the letters referred to in Section 6(i).
(k) The Company shall have furnished to the Initial Purchasers a
certificate, dated the Closing Date, of its Chairman of the Board, its President
or a Vice President or its chief financial officer stating that (i) such
officers have carefully examined the Offering Memorandum and, in their opinion,
the Offering Memorandum, as of its date, did not include any untrue statement of
a material fact and did not omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) since
the date of the Offering Memorandum no event has occurred which should have been
set forth in a supplement or amendment to the Offering Memorandum, (iii) as of
the Closing Date, the representations and warranties of the Company in this
Agreement are true and correct in all material respects and the Company has
complied in all material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date and (iv) subsequent to the date of the most recent financial
statements in the Offering Memorandum, there has been no development which could
reasonably be expected to have a Material Adverse Effect, except as set forth in
the Offering Memorandum (exclusive of any supplement or amendment thereto or the
incorporation by reference of any document thereto subsequent to the date
hereof).
(l) The Company shall have executed the Registration Rights
Agreement and the Initial Purchasers shall have received an original copy
thereof, duly executed by the Company.
(m) Subsequent to the dates as of which information is given in
the Offering Memorandum (exclusive of any amendment or supplement thereof or the
incorporation by reference of any document thereto subsequent to the date
hereof), there shall not have been any change, or any development involving a
prospective change, in or affecting the business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated by
the Offering Memorandum, the
21
effect of which is, in the sole judgment of the Initial Purchasers, so material
and adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Notes as contemplated in the Offering Memorandum.
(n) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of the Closing Date, prevent the
issuance or sale of the Notes; and no injunction, restraining order or order of
any other nature by any federal or state court of competent jurisdiction shall
have been issued as of the Closing Date which would prevent the issuance or sale
of the Notes.
(o) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review (other than an announcement
with positive implications of a possible upgrading), its rating of any of the
Company's debt securities.
(p) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or in the over-the-counter market, or
trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended (other than pursuant to
automatic suspension criteria currently in place) or minimum prices shall have
been established on any such exchange or such market by the Commission, by such
exchange or by any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by Federal or
state authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving the
United States or there shall have been a declaration of a national emergency or
war by the United States or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the several Initial Purchasers,
impracticable or inadvisable to proceed with the sale or delivery of the Notes
on the terms and in the manner contemplated in this Agreement and the Offering
Memorandum.
(q) The Indenture shall have been duly executed and delivered by
the Company and the Trustee, and the Notes shall have been duly executed and
delivered by the Company and duly authenticated by the Trustee.
(r) The Initial Purchasers shall have received counterparts of the
Registration Rights Agreements which shall have been executed and delivered by a
duly authorized officer of the Company.
(s) The Notes shall have been approved by the NASD for trading in
the PORTAL Market.
All opinions, letters, evidence and certificates mentioned above or elsewhere in
this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriters.
7. Indemnification and Contribution.
22
(a) The Company shall indemnify and hold harmless each Initial
Purchaser, its officers, employees, representatives and agents and each person,
if any, who controls any Initial Purchaser within the meaning of the Securities
Act (collectively the "Initial Purchaser Indemnified Parties" and each an
"Initial Purchaser Indemnified Party") against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which that
Initial Purchaser Indemnified Party may become subject, under the Securities 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 the Offering Memorandum or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state in the
Offering Memorandum 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 Initial Purchaser Indemnified Party promptly
upon demand for any legal or other expenses reasonably incurred by that Initial
Purchaser 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) an untrue statement or alleged untrue statement in
or (ii) omission or alleged omission from the Offering Memorandum or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company through Citigroup Global Markets Inc. by or
on behalf of any Initial Purchaser specifically for use therein, which
information the parties hereto agree is limited to the Initial Purchasers'
Information (as defined in Section 16). 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 Initial Purchaser Indemnified Party.
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Company, its officers, employees,
representatives, agents, directors and each person, if any, who controls the
Company within the meaning of the Securities Act (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
Securities 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 the Offering Memorandum or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein 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 through the Initial Purchasers 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; provided that the parties hereto hereby agree that such
written information provided by the Initial Purchasers consists solely of the
Initial Purchasers' Information. This indemnity agreement is not exclusive and
will be in addition to any liability which the Initial Purchasers might
otherwise have and shall not limit any rights or remedies which may otherwise be
available at law or in equity to the Company Indemnified Parties.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is
23
to be made against the indemnifying party under this Section 7, 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 7 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 7. 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 7 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 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 Citigroup Global Markets Inc., if the indemnified parties under this Section
7 consist of any Initial Purchaser Indemnified Party, or by the Company if the
indemnified parties under this Section 7 consist of any Company Indemnified
Parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 7(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 7 is
unavailable or insufficient to hold harmless an indemnified party under Section
7(a) or 7(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) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Initial Purchasers on
the other from the offering of the Notes or if the allocation provided by clause
(i) 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)
above but also the relative fault of the Company on the one hand and the Initial
Purchasers 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
24
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Initial Purchasers on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes purchased under this Agreement
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Initial Purchasers with
respect to the Notes purchased under this Agreement, in each case as set forth
in the table on the cover page of the Offering Memorandum. 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 Initial Purchasers 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; provided that the parties hereto
agree that the written information furnished to the Company through the Initial
Purchasers for use in the Preliminary Offering Memorandum or the Offering
Memorandum consists solely of the Initial Purchasers' Information. The Company
and the Initial Purchasers agree that it would not be just and equitable if
contributions pursuant to this Section 7(d) were to be determined by pro rata
allocation (even if the Initial Purchasers 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 7(d) shall be
deemed to include, for purposes of this Section 7(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 7(d), (i) no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes purchased and initially resold by it were resold to investors less the
amount of any damages which such Initial Purchaser has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission, and (ii) 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 Initial Purchasers' obligations to contribute as provided in this
Section 7(d) are several in proportion to their respective underwriting
obligations and not joint.
8. Termination. The obligations of the Initial Purchasers
hereunder may be terminated by Citigroup Global Markets Inc., in its absolute
discretion by notice given to and received by the Company prior to delivery of
and payment for the Notes if, prior to that time, (a) any of the events
described in Sections 6(k), 6(m), 6(n), 6(o) or 6(p) have occurred or (b) this
Agreement terminates pursuant to Section 10.
9. Reimbursement on Initial Purchasers' Expenses. If (a) this
Agreement shall have been terminated pursuant to Section 8(a), (b) the Company
shall fail to tender the Notes for delivery to the Initial Purchasers for any
reason permitted under this Agreement, or (c) the Initial Purchasers shall
decline to purchase the Notes for any reason permitted under this Agreement the
Company shall reimburse the Initial Purchasers for the fees and expenses of
their counsel and for such other out-of-pocket expenses as shall have been
reasonably incurred by them in connection with this Agreement and the proposed
purchase of the Notes, and upon demand the Company shall pay the full amount
thereof to Citigroup Global Markets Inc.
25
10. Substitution of Initial Purchasers. If any one or more Initial
Purchasers shall default in its performance of its obligations to purchase
shares of the Notes hereunder and the aggregate principal amount of the Notes
which such defaulting Initial Purchaser agreed but failed to purchase does not
exceed ten percent (10%) of the principal amount of Notes purchased, the
remaining Initial Purchasers shall be obligated severally to purchase (in the
respective proportions which the amount of the Notes set forth opposite their
names in Schedule I hereto bears to the aggregate amount of Notes set forth
opposite the names of all the remaining Initial Purchasers) the Notes which such
defaulting Initial Purchaser or Initial Purchasers agreed but failed to
purchase. If any one or more Initial Purchasers shall so default and the
aggregate principal amount with respect to such default is more than ten percent
(10%) of the total principal amount to be purchased and arrangements
satisfactory to the non-defaulting Initial Purchasers and the Company for the
purchase of such Notes by other persons are not made within forty eight (48)
hours after such default, this Agreement shall terminate.
If the remaining Initial Purchasers or any substituted Initial
Purchasers are required hereby or agree to take up all or part of the Notes of a
defaulting Initial Purchaser as provided in this Section 10, (i) the Company
shall have the right to postpone the Closing Date for a period of not more than
five (5) full business days in order that the Company may effect whatever
changes may thereby be made necessary in the Offering Memorandum, or in any
other documents or arrangements, and (ii) the respective principal amount to be
purchased by the remaining Initial Purchasers or substituted Initial Purchasers
shall be taken as the basis of their underwriting obligation for all purposes of
this Agreement. Nothing herein contained shall relieve any defaulting Initial
Purchaser of its liability to the Company or the other Initial Purchasers for
damages occasioned by its default hereunder. Any termination of this Agreement
pursuant to this Section 10 shall be without liability on the part of any
non-defaulting Initial Purchaser or the Company, except expenses to be paid or
reimbursed pursuant to Sections 5 and 9 and except the provisions of Section 7
shall not terminate and shall remain in effect. As used in this Agreement, the
term "Initial Purchasers" includes, for all purposes of this Agreement unless
the context otherwise requires, any party not originally identified as an
Initial Purchaser that, pursuant to this Section 10 purchases Notes which a
defaulting Initial Purchaser agreed but failed to purchase.
11. Successors; Persons Entitled To Benefit Of Agreement. This
Agreement shall inure to the benefit of and be binding upon the several Initial
Purchasers, the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any person
other than the persons mentioned in the preceding sentence any legal or
equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained, this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person; except that the representations,
warranties, covenants, agreements and indemnities of the Company contained in
this Agreement shall also be for the benefit of the Initial Purchaser
Indemnified Parties, and the indemnities of the several Initial Purchasers shall
also be for the benefit of the Company Indemnified Parties.
12. Survival Of Indemnities, Representations, Warranties, Etc. The
respective indemnities, covenants, agreements, representations, warranties and
other statements of the Company and the several Initial Purchasers, as set forth
in this Agreement or made by them respectively, pursuant to this Agreement,
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any Initial Purchaser, the Company or any person controlling any
of them and shall survive delivery of and payment for the Notes.
26
13. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or
sent by mail, telex or facsimile transmission to the General Counsel, Citigroup
Global Markets Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention:
General Counsel (Fax no.: (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to Amkor Technology, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer
(Fax: ▇▇▇-▇▇▇-▇▇▇▇).
14. Definition Of Certain Terms. For purposes of this Agreement,
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading.
15. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. Initial Purchasers' Information. The parties hereto
acknowledge and agree that, for all purposes of this Agreement, the Initial
Purchasers' Information consists solely of the information in the Offering
Memorandum contained in the third paragraph, ninth paragraph (fourth and fifth
sentences only) and eleventh paragraph under the heading "Plan of Distribution"
concerning the terms of the offering by the Initial Purchasers, the Initial
Purchasers' intention to make a market in the Notes and the transactions the
Initial Purchasers may make in the market, respectively.
17. Partial Unenforceability. The invalidity or unenforceability
of any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
18. General. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. In this Agreement, the masculine, feminine and neuter
genders and the singular and the plural include one another. The section
headings in this Agreement are for the convenience of the parties only and will
not affect the construction or interpretation of this Agreement. This Agreement
may be amended, modified or assigned, and the observance of any term of this
Agreement may be waived, only by a writing signed by the Company and the Initial
Purchasers.
19. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
27
If the foregoing is in accordance with your understanding of the
agreement among the Company and the several Initial Purchasers, kindly indicate
your acceptance in the space provided for that purpose below.
Very truly yours,
AMKOR TECHNOLOGY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
Accepted as of the date first above written:
CITIGROUP GLOBAL MARKETS INC.
DEUTSCHE BANC SECURITIES INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: CITIGROUP GLOBAL MARKETS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
For themselves and the other several Initial
Purchasers named in Schedule I to
the foregoing Agreement.
28
SCHEDULE I
Principal Amount of
Initial Purchasers Notes to Be Purchased
------------------ ----------------------------
Citigroup Global Markets Inc........................................... US$ 297,500,000
Deutsche Bank Securities Inc........................................... 63,750,000
▇.▇. ▇▇▇▇▇▇ Securities Inc............................................. 63,750,000
----------------
Total......................................................... US$ 425,000,000
29
EXHIBIT A
[Form of Registration Rights Agreement]
30