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EXHIBIT 4.3
AMKOR TECHNOLOGY, INC.
STOCKHOLDER RIGHTS AGREEMENT
This Stockholder Rights Agreement (this "Agreement") is made as of this
18th day of April, 2000, by and among Amkor Technology, Inc., a Delaware
corporation (the "Company"), and the purchasers of the Company's Common Stock
(the "Common Stock") pursuant to that certain Amended and Restated Stock
Purchase Agreement dated as of April 14, 2000 between the Company and such
purchasers in one or more closings (the "Purchasers") (the "Purchase
Agreement"). Purchasers who execute a counterpart signature page to this
Agreement after the date hereof shall become parties to this agreement without
further action by the other parties hereto.
WHEREAS, the Company and the Purchasers entered into the Purchase
Agreement pursuant to which the Company agreed to grant to the Purchasers
certain rights upon the terms hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual obligations and promises
contained in this Agreement and other sufficient consideration deemed received,
the parties hereto agree as follows:
Agreement
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Affiliate" shall mean any affiliate (as that term is defined in
Rule 405 promulgated by the Commission under the Securities Act) and, without
limitation, as respects a Holder of Registrable Securities, shall include any
investment fund that is managed by or under common management with such Holder.
"Commission" shall mean the Securities and Exchange Commission or
any successor agency.
"Registrable Securities" shall mean (i) shares of the Company's
Common Stock issued in connection with the Purchase Agreement; (ii) shares of
Common Stock issued or issuable upon the exercise of the Warrants issued
pursuant to the Purchase Agreement (the "Warrants"); and (iii) shares of the
Common Stock or other securities issued or issuable with respect to, or in
exchange for or in replacement of shares of the Common Stock and Warrants or
other securities convertible into or exercisable for the Common Stock and
Warrants upon any stock split, stock dividend, recapitalization, or similar
event; provided, however, that any shares described in clauses (i)-(iii) above
which have been resold to the public or, except for purposes of Section 19
herein, can be sold pursuant to Rule 144 of the Securities Act (as defined
below) shall cease to be Registrable Securities.
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"Holder" shall mean each Purchaser and any transferee of
Registrable Securities who, pursuant to Section 15 below, is entitled to
registration rights hereunder.
"Restricted Securities" shall mean the securities of the Company
required to bear the legend set forth in Section 3 hereof (or any similar
legend).
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (as defined below), the declaration or
ordering of the effectiveness of such registration statement and the absence of
a stop order suspending the effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses incidental to the
Company's performance of its obligations under this Agreement, including,
without limitation, all registration, qualification and filing fees, printing
expenses, escrow fees, fees and disbursements of counsel for the Company, blue
sky fees and expenses, accounting fees of the Company, and the expense of any
special audits incident to or required by any such registration.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders.
2. Restrictions on Transferability. The Restricted Securities shall not
be transferable except upon the conditions specified in this Agreement, which
conditions are intended to ensure compliance with the provisions of the
Securities Act. Each Holder of Restricted Securities will cause any proposed
transferee of the Restricted Securities held by such Holder to agree to take and
hold such Restricted Securities subject to the provisions and upon the
conditions specified in this Agreement.
3. Restrictive Legend. Each certificate representing (i) the Common
Stock, and (ii) any other securities issued in respect of the Common Stock
issued upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event, shall (unless otherwise permitted by the
provisions of Section 4 below) be stamped or otherwise imprinted with a legend
in the following form (in addition to any legend required under applicable state
securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THESE SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT.
IN ADDITION, THE SALE OR TRANSFER OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN
STOCKHOLDER RIGHTS AGREEMENT BY AND AMONG THE CORPORATION, THE ORIGINAL
OWNER OF THESE SHARES AND CERTAIN OTHER HOLDERS OF THE CORPORATION'S
SHARES. COPIES OF THE AGREEMENTS COVERING THE PURCHASE OF THESE SHARES
AND RESTRICTING THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN
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REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF THE CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
CORPORATION.
4. Notice of Proposed Transfers. The Holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 4. Prior to any proposed transfer
of any Restricted Securities (other than (i) a transfer not involving a change
in beneficial ownership, or (ii) in transactions involving the distribution
without consideration of Restricted Securities by a Purchaser to any of its
partners, or retired partners, or to the estate of any of its partners or
retired partners, (iii) a transfer to an affiliated fund or partnership, (iv)
transfers in compliance with Rule 144, so long as the Company is furnished with
satisfactory evidence of compliance with such Rule), unless there is in effect a
registration statement under the Securities Act covering the proposed transfer,
the Holder thereof shall give written notice to the Company of such Holder's
intention to effect such transfer. Each such notice shall describe the manner
and circumstances of the proposed transfer in sufficient detail, and shall, if
the Company so requests, be accompanied (except in transactions in compliance
with Rule 144) by either (i) a written opinion of legal counsel who shall be
reasonably satisfactory to the Company, addressed to the Company and reasonably
satisfactory in form and substance to the Company's counsel, to the effect that
the proposed transfer of the Restricted Securities may be effected without
registration under the Securities Act, or (ii) a "no action" letter from the
Commission to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by the holder to the
Company. Each certificate evidencing the Restricted Securities transferred as
above provided shall bear the appropriate restrictive legend set forth in
Section 3 above, except that such certificate shall not bear such restrictive
legend if in the opinion of counsel for the Company such legend is not required
in order to establish compliance with any provisions of the Securities Act.
5. Request for Registration. At any time after the one year anniversary
of the First Closing Date (as defined in the Purchase Agreement), each of (i)
the AIG Funds listed on Exhibit A (acting as a group), (ii) Bellwether
Investment Pte Ltd, (iii) the Gilbert Global Funds listed on Exhibit A (acting
as a group) and (iv) Far East Investments Limited shall have the right,
severally, to request in writing that the Company file a registration statement
on Form S-3 (or any successor thereto) for a public offering of shares of
Registrable Securities, provided that the reasonably anticipated aggregate price
to the public of such offering would exceed $50,000,000. Upon receipt of such
request, and subject to the condition that the Company is a registrant entitled
to use Form S-3 to register securities for such an offering, the Company will
promptly give written notice of the request for the proposed registration to all
other Holders and include all Registrable Securities or other shares of Common
Stock of any Holder or Holders joining in such request as are specified in a
written request received by the Company within 30 days after receipt of such
written notice from the Company. Notwithstanding the foregoing, the Company may,
upon written notice to all the Holders, postpone having the registration
statement declared effective for a reasonable period not to exceed 90 days if
the Company possesses material non-public information, the disclosure of which
would have a material adverse effect on the Company and its subsidiaries taken
as a whole.
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Notwithstanding the foregoing provisions of this Section 5, the
Company shall not be obligated to take any action to effect any such
registration, qualification or compliance pursuant to this Section 5:
(A) In any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(B) After the Company has effected four such
registrations pursuant to this Section 5, such registrations have been declared
or ordered effective and the securities offered pursuant to such registrations
have been sold;
(C) Within nine months following the effective date
of a registration statement previously filed by the Company pursuant to this
Section 5; or
(D) After the 6 year anniversary of the First
Closing Date (as defined in the Purchase Agreement)
The Company shall not include any securities that are not Registrable
Securities in any registration statement filed with the Commission pursuant to a
demand made under this Section 5 without the prior written consent of the
holders of a majority of the Registrable Securities covered by such registration
statement.
6. Company Registration.
(a) Notice of Registration. If, at any time prior to the six year
anniversary of the First Closing Date (as defined in the Purchase Agreement) the
Company shall determine to register any of its securities, either for its own
account or the account of a security holder or holders exercising their
respective requested registration rights, other than (i) a registration relating
solely to employee benefit plans, (ii) a registration relating solely to a
transaction pursuant to Rule 145 of the Securities Act, (iii) a registration
statement on Form S-4, (iv) any registration statement filed solely to register
debt securities or convertible debt securities or (v) a registration on Form S-3
solely for the purpose of registering shares issued in a non-underwritten
offering in connection with a merger, combination or acquisition, the Company
will:
(i)promptly give to each Holder written notice thereof;
and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities or other shares of Common Stock
specified in a written request or requests, made within 10 days after receipt of
such written notice from the Company, by any Holder or Holders.
(b) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 6(a)(i). In such event, the right of any Holder to
registration pursuant to Section 6 shall be conditioned upon such Holder's
participation in such
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underwriting to the extent provided herein. The Company shall (together with all
Holders proposing to distribute their securities through such underwriting)
enter into an underwriting agreement in customary form with the managing
underwriter selected for such underwriting by the Company. Notwithstanding any
other provision of this Section 6, if the managing underwriter for the offering
determines that the success of the offering requires a limitation of the number
of shares to be underwritten, the managing underwriter for the offering Company
may limit the number of Registrable Securities and other securities to be
distributed through such underwriting.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the other Holders. The Registrable
Securities and/or other securities so withdrawn shall also be withdrawn from
registration; provided, however, that if by the withdrawal of such Registrable
Securities a greater number of Registrable Securities held by other Holders may
be included in such registration (up to the maximum of any limitation imposed by
the Company), then the Company may offer to all Holders who have included
Registrable Securities in the registration the right on a pro rata basis to
include additional Registrable Securities in the offering in an aggregate amount
not to exceed the amount of Registrable Securities withdrawn.
(c) In all registered public offerings, whether underwritten or
not, the amount of Registrable Securities of Holders which are included in such
registration, in accordance with Section 6(a)(ii) above, shall be allocated to
the Holders in proportion, as nearly as practicable, to the respective amounts
of Registrable Securities held by each of such Holders as of the date of the
notice given pursuant to this Section 6.
7. Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Section 5 or Section 6 shall be borne by the Company. All Selling Expenses
relating to securities registered by the Holders shall be borne by the Holders
of such securities pro rata on the basis of the number of shares so registered.
8. Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will use its best efforts to:
(a) Prepare and file with the Commission a registration statement
with respect to such securities within 90 days, cause such registration
statement to become effective within 180 days and remain effective for at least
120 days, or, in the case of a Company registration, until the distribution
described in the registration statement has been completed;
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(c) Furnish to the Holders participating in such registration and
to the underwriters, if any, of the securities being registered such reasonable
number of copies of the
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registration statement, preliminary prospectus, final prospectus and such other
documents as such underwriters may reasonably request in order to facilitate the
public offering of such securities;
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders;
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement;
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;
(g) Cause such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed or quoted on each automated quotation
system on which similar securities issued by the Company are then quoted; and
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
9. Termination of Registration Rights. The registration rights granted
pursuant to this Agreement shall terminate (i) as to all Holders on the six year
anniversary of the First Closing Date (as defined in the Purchase Agreement)
anniversary of the date hereof and (ii) as to any Holder, at such time as the
Registrable Securities held by such Holder represents 1% or less of the
outstanding Common Stock of the Company and as (A) such Holder is able to sell
all Registrable Securities held by it under Rule 144 within a three month period
or (B) such Holder is able to sell all Registrable Securities held by it
pursuant to Rule 144(k) promulgated under the Securities Act.
10. Lock-Up Agreement. In consideration for the Company agreeing to its
obligations under this Agreement each Holder of Registrable Securities agrees
not to offer to sell, contract to sell or otherwise sell, dispose of, loan,
pledge or grant any rights with respect to any Registrable Securities, any
options or warrants to purchase any Registrable Securities or any securities
convertible into or exchangeable for Registrable Securities, or otherwise
dispose of any Registrable Securities or other securities of the Company, except
to Affiliates, to any investment fund that is managed by, or under common
management with, such Holder, to any general or limited partner of such Holder
and to other Holders, in each case provided that the transferee executes and
delivers to
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the Company the Adoption Agreement attached as Exhibit A, without the prior
written consent of the Company until the one year anniversary of the First
Closing Date (as defined in the Purchase Agreement). Notwithstanding the
foregoing, if (i) a transferee is a limited partner of either of a Holder or an
Affiliate of such Holder, and (ii) the transferee receives fewer than 100,000
shares of capital stock of the Company (in one or more transactions with, or
distributions from, the Holder or the Affiliate of such Holder), then such
transferee shall not be required to execute the Adoption Agreement to be bound
by the obligations of the transferor pursuant to this Agreement. In addition,
each Holder of Registrable Securities agrees at all times not to sell, make any
short sale of, loan, grant any option for the purchase of, or otherwise dispose
of any Registrable Securities or other securities of the Company, except,
subject to the Company's right of first refusal (as set forth in Section 18):
(a) pursuant to a bona fide public offering registered under the
Securities Act;
(b) pursuant to Rule 144 under the Securities Act;
(c) in other transactions so long as such transactions do not
result in any single person or group owning 5% or more of the outstanding total
voting power of the Company and provided that no investor may transfer shares to
any competitor of the Company (as determined by the Company in its reasonable
discretion);
(d) sales into any tender or exchange offer (A) which is made by
or on behalf of the Company; (B) which is made by another person or group and is
not opposed by the Board of Directors of the Company; or (C) which is made by
another person or group and which would result in such person or group owning
more than fifty percent (50%) of the total outstanding voting power of the
Company;
(e) to a wholly-owned subsidiary, to an Affiliate of such Holder,
to an investment fund that is managed by, or under common management with, such
Holder and/or to any general or limited partner, in each case provided that the
transferee executes and delivers to the Company the Adoption Agreement attached
as Exhibit A; provided, however, that if (i) a transferee is a limited partner
of either of a Holder or an Affiliate of such Holder, and (ii) the transferee
receives fewer than 100,000 shares of capital stock of the Company (in one or
more transactions with, or distributions from, the Holder or the Affiliate of
such Holder), then such transferee shall not be required to execute the Adoption
Agreement to be bound by the obligations of the transferor pursuant to this
Agreement; or
(f) pursuant to a bona fide pledge of such shares to an
institutional lender to secure a loan, guarantee or other financial support,
provided that such lender agrees to hold such stock subject to all provisions of
this Agreement and any sale or disposition by such lender of such pledged stock
shall be subject to the limitations of this Section 10;
(g) in the event of a merger or consolidation in which the
Company is acquired by another corporation, or pursuant to a plan of liquidation
of the Company; or
(h) any public distribution (including any Rule 144 sale),
provided that, in cases other than public distributions underwritten by an
underwriter selected by the Company, no single
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Holder (other than an underwriter) is known to be acquiring more than five
percent (5%) of the outstanding Company shares in such distribution.
In addition to the foregoing restrictions, each Holder agrees that it
will not nor will it permit any of its affiliates to sell or transfer any of the
shares of the Company to a person or entity which as of the date of such
transfer, is engaged in or has publicly announced its intention to enter into
the business of semiconductor packaging and/or test services. Each Holder agrees
that the Company may instruct its transfer agent to place stop transfer
notations in its records to enforce the provisions of this Section 10. For
purposes of this Section 10, an acquisition or merger of an Holder by or into
another entity, in which such entity following the acquisition or merger owns at
least a majority of the outstanding capital stock of such Holder, shall not be
deemed a transfer or sale of the Registrable Securities of the Company held by
such Holder.
11. Public Offering Standoff. Each Holder agrees in connection with any
registration of the Company's securities (other than a registration of
securities in a Rule 145 transaction or with respect to an employee benefit
plan), upon request of the Company or the underwriters managing any underwritten
offering of the Company's securities, not to offer to sell, contract to sell or
otherwise sell, dispose of, loan, pledge or grant any rights with respect to any
Registrable Securities, any options or warrants to purchase any Registrable
Securities or any securities convertible into or exchangeable for Registrable
Securities (except in all cases for Registrable Securities that are included in
the registration and except for transfers among Affiliates, to one or more
investment funds that are managed by, or under common management with, such
Holder, and transfers to other Holders, in each case provided that the
transferee has executed an agreement to be bound by the obligations of the
transferor pursuant to this Agreement) without the prior written consent of the
Company and such managing underwriters for such period of time, not to exceed
180 days, as the Board of Directors establishes pursuant to its good faith
negotiations with such managing underwriters, provided that the Company's
directors, officers and 5% stockholders agree to the same limitations. Each
Holder further agrees to enter into any agreement reasonably required by the
underwriters to implement the foregoing. If the Holders are not permitted to
sell securities pursuant to this Section 11 in connection with any registration
requested by the Holders pursuant to Section 5, then such registration shall not
count against the number of registrations that the Holders may request pursuant
to Section 5.
12. Indemnification.
(a) The Company will indemnify each Holder, each of its officers,
directors and each person controlling such Holder within the meaning of Section
15 of the Securities Act, with respect to which registration, qualification or
compliance has been effected pursuant to this Agreement, and each underwriter,
if any, and each person who controls any underwriter within the meaning of
Section 15 of the Securities Act, against all expenses, claims, losses, damages
and liabilities (or actions in respect thereof), including any of the foregoing
incurred in settlement of any litigation, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, not misleading, and will reimburse each such
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Holder, each of its officers, directors, and each person controlling such
Holder, for any legal and any other expenses reasonably incurred in connection
with investigating, preparing or defending any such claim, loss, damage,
liability or action, provided that the Company will not be liable in any such
case to the extent that any such claim, loss, damage, liability or action arises
out of or is based on any untrue statement or omission or alleged untrue
statement or omission, made in reliance upon and in conformity with written
information furnished to the Company in writing for inclusion in a registration
statement by such Holder.
(b) Each Holder will, on a several but not joint basis, if
Registrable Securities held by such Holder are included in the securities as to
which such registration, qualification or compliance is being effected,
indemnify the Company, each of its directors and officers and each underwriter,
if any, of the Company's securities covered by such a registration statement,
each person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, and each other such Holder, each of its
officers and directors and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company, such Holders, such directors,
officers, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company in writing for
inclusion in a registration statement by such Holder; provided, however, that
the obligations of such Holders hereunder shall be limited to an amount equal to
the gross proceeds before expenses and commissions to each such Holder of
Registrable Securities sold as contemplated herein.
(c) Each party entitled to indemnification under this Section 12
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at its own
expense; provided, however, that the Indemnified Party (together with all other
Indemnified Parties that may be represented without conflict by one counsel)
shall have the right to retain one separate counsel, with the reasonable fees
and expenses to be paid by the Indemnifying Party, if representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between such
Indemnified Party and any other party represented by such counsel in such
proceeding; and provided further that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement, except to the extent, but only to the extent,
that the Indemnifying Party's ability to defend against such claim or litigation
is impaired as a result of such
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failure to give notice. No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
(d) If the indemnification provided for in this Section 12 is
unavailable to or insufficient to hold harmless an Indemnified Party under
subsection (a) or (b) of this Section 12 in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
each Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and the Indemnified Party in connection
with the statements or omissions which resulted in such losses, claims, damages
and liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such Indemnifying Party and
Indemnified Party 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 such Indemnifying Party or by such Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree that it
would not be just and equitable if contribution pursuant to this Section 12(d)
were determined by pro rata allocation (even if the Holders or any underwriters,
selling agents or other securities professionals or all of them were treated as
one entity for such purpose) or by any other method of allocation that does not
take into account the equitable considerations referred to in this Section
12(d). The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. 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 obligations of the Holders and any
underwriters, selling agents or other securities professionals in this Section
12(d) to contribute shall be several in proportion to the percentage of
principal amount of Registrable Securities registered or underwritten, as the
case may be, by them and not joint.
13. Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Agreement.
14. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities to the public without registration, the
Company agrees to:
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
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(b) Use its best efforts to then file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act of 1934, as amended; and
(c) Furnish to Holders of Registrable Securities forthwith upon
request, a written statement by the Company as to its compliance with the
reporting requirements of Rule 144, and of the Securities Act and the Securities
Exchange Act of 1934, a copy of the most recent annual or quarterly report of
the Company, and such other reports and documents of the Company as a Holder of
Registrable Securities may reasonably request in availing itself of any rule or
regulation of the Commission allowing such Holder to sell any such securities
without registration.
15. Transfer of Registration Rights. The right to cause the Company to
register securities granted hereunder may be assigned to a transferee or
assignee who acquires at least 1,000,000 shares of Registrable Securities (as
adjusted for stock splits, stock dividends, recapitalizations or similar
events), provided that the Company is given written notice of such assignment
prior to such assignment. In addition, rights to cause the Company to register
securities may be freely assigned to any Affiliate, or to one or more investment
funds that are managed by, or under common management with, such Holder.
Notwithstanding the foregoing, Far East Investments, Ltd. or any Affiliate
thereof ("Far East Investments") may transfer the right to cause the Company to
register securities to a transferee or assignee who acquires at least 400,000
shares of Registrable Securities (as adjusted for stock splits, stock dividends,
recapitalizations or similar events) from Far East Investments.
16. Company Covenants. The Company hereby covenants and agrees as
follows:
(a) Annual and Quarterly Financial Information. The Company will
send to each Purchaser for so long as such Purchaser is a holder of at least
1,000,000 shares of Registrable Securities (as adjusted for stock splits, stock
dividends, recapitalizations or similar events) all quarterly and annual reports
filed with the Commission pursuant to the Securities Exchange Act of 1934, as
amended, as soon as practicable after each such report is filed.
(b) Termination of Covenants. Notwithstanding anything to the
contrary set forth herein, the covenants set forth in this Section 16 shall
terminate and be of no further force or effect with respect to any Purchaser at
such time that such Purchaser holds less than 1,000,000 shares of Registrable
Securities (as adjusted for stock splits, stock dividends, recapitalizations or
similar events).
17. Rights of First Refusal in New Issuances of Company Securities.
Until the 5 year anniversary of the First Closing Date (as defined in the
Purchase Agreement), the Company hereby grants to each Purchaser who holds at
least 750,000 (or in the case of Far East Investments or a transferee or
assignee thereof, at least 400,000) shares of Registrable Securities (as
adjusted for stock splits, stock dividends, recapitalizations or similar events)
the right of first refusal to purchase its pro rata share of "New Securities"
(as defined in this Section 17) that the Company may, from time to time propose
to sell and issue. Such pro rata share, for purposes of this right of first
refusal, is the ratio of (X) the number of shares of Common Stock immediately
prior to the issuances of New Securities then owned by such Purchaser (including
shares issuable upon exercise of options or warrants held by such Purchaser), to
(Y) the total number of shares of Common Stock immediately
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prior to the issuances of New Securities then outstanding, after giving effect
to the conversion of all outstanding convertible securities and the exercise of
all outstanding options and warrants. This right of first refusal shall be
subject to the following provisions:
(a) "New Securities" shall mean any Common Stock and Preferred
Stock of the Company whether or not authorized on the date hereof, and rights,
options, or warrants to purchase Common Stock or Preferred Stock and securities
of any type whatsoever that are convertible or exercisable for or into Common
Stock or Preferred Stock; provided, however, that "New Securities" does not
include the following:
(i) the Common Stock issued to the Purchasers pursuant to
the Purchase Agreement or any agreement or commitment to issue any of the
foregoing;
(ii) the Warrants issued to the Purchasers pursuant to the
Purchase Agreement and shares of Common Stock issuable upon exercise of the
Warrants;
(iii) shares of Common Stock, or options to purchase
shares of Common Stock (including all options granted by the Company prior to
the date of this Agreement), issued or granted to officers, directors and
employees of, or consultants to, the Company pursuant to a stock grant, employee
restricted stock purchase agreement, option plan or purchase plan or other stock
incentive program (collectively, the "Plans");
(iv) securities of the Company offered to the public
pursuant to a firm commitment underwritten public offering pursuant to a
registration statement filed under the Securities Act, if the rights of the
Purchasers pursuant to this Section 17 would, in the reasonable opinion of legal
counsel to the Company, cause the Company to violate applicable rules and
regulations promulgated under the Securities Act;
(v) securities of the Company issued pursuant to the
acquisition of another corporation by the Company by merger, purchase of
substantially all of the assets, or other reorganization whereby the Company
owns more than fifty percent (50%) of the voting power of such other
corporation;
(vi) securities of the Company issued in connection with
equipment lease financing transactions, real estate leases or bank financing
transactions the principal purpose of which is not to raise equity funding;
(vii) securities issued to corporate partners or in
connection with other strategic alliances if the Board of Directors agrees that
such transaction should be excluded from operation of this Section 17;
(viii) shares of Common Stock or Preferred Stock issued in
connection with any stock split, stock dividend, or recapitalization by the
Company; and
(ix) debt securities issued on a private placement basis
or with an intent for them to be available for resale under Rule 144A of the
Securities Act.
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(b) In the event that Company proposes to undertake an issuance
of New Securities, it shall give each Purchaser written notice of its intention,
describing the type of New Securities, the price, and the general terms upon
which the Company proposes to issue the same. Each Purchaser shall have ten (10)
business days after receipt of such notice to agree to purchase its pro rata
share of such New Securities at the price and upon the terms specified in the
notice by giving written notice to the Company and stating therein (i) the
quantity of New Securities to be purchased and (ii) the maximum number of New
Securities such Purchaser desires to purchase (up to its pro rata share) if any
other Purchasers choose not to exercise their rights pursuant to this Section
17.
(c) In the event that Purchasers fail to exercise in full the
right of first refusal within the ten (10) business day period specified above,
the Company shall have one hundred eighty (180) days thereafter to sell (or
enter into an agreement pursuant to which the sale of New Securities covered
thereby shall be closed, if at all, within ninety (90) days from the date of
said agreement) the New Securities respecting which the rights of the Purchasers
were not exercised at a price and upon terms no more favorable to the purchasers
thereof than specified in the Company's notice. In the event the Company has not
sold the New Securities within such one hundred eighty (180) day period (or sold
and issued New Securities in accordance with the foregoing within ninety (90)
days from the date of such agreement) the Company shall not thereafter issue or
sell any New Securities, without first offering such New Securities to the
Purchasers and in the manner provided above.
(d) This right of first refusal is nonassignable except to any
transferee to whom registration rights may be transferred pursuant to Section 15
of this Agreement.
18. Company's Right of First Refusal on Stock Transfers.
(a) Grant. The Company is hereby granted the right of first
refusal (the "Transfer Right of First Refusal"), exercisable in connection with
any proposed sale or other transfer of the Company's capital stock, other than
transfers permitted by Paragraphs (a), (b), (e) and (h) of Section 10 of this
Agreement, now or hereafter owned by any Holder (the "ROFR Shares"). For
purposes of this Section 18, the term "transfer" shall include any assignment,
pledge, encumbrance or other disposition for value of the ROFR Shares intended
to be made by the Holder of such ROFR Shares.
(b) Notice of Intended Disposition. In the event the Holder
desires to accept a bona fide third-party offer for any or all of the ROFR
Shares (the shares subject to such offer to be hereinafter called, solely for
the purposes of this Section 18 the "Target Shares"), the Holder shall promptly
deliver to the Company written notice (the "Disposition Notice") of the offer
and the basic terms and conditions thereof, including the proposed purchase
price.
(c) Exercise of Right.
(i) The Company (or its assignees) shall, for a period of
ten (10) business days following receipt of the Disposition Notice, have the
right to repurchase any or all of the Target Shares specified in the Disposition
Notice upon substantially the same terms and conditions specified therein. Such
right shall be exercisable by written notice (the "Exercise Notice") delivered
to the Holder prior to the expiration of the ten (10) business day exercise
period (the "Exercise Period"). The Company (or its assignee) shall effect the
repurchase of the Target Shares, including
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payment of the purchase price therefor, not more than five (5) business days
after delivery of the Exercise Notice. At such time the Holder shall deliver to
the Company the certificates representing the Target Shares to be purchased,
each certificate to be properly endorsed for transfer. The Target Shares so
purchased shall thereupon be cancelled and cease to be issued and outstanding
shares of the Company's capital stock.
(ii) With respect to any repurchase of shares pursuant to
this Section 18(c), should the purchase price specified in the Disposition
Notice be payable in property other than cash or evidences of indebtedness, the
Company (or their assignees) exercising its Transfer Right of First Refusal
shall have the right to pay the purchase price in the form of cash equal in
amount of the value of such property. If the Holder and the Company cannot agree
on such cash value within ten (10) business days after the Company's receipt of
the Disposition Notice, the valuation shall be made by an appraiser of
recognized standing selected by the Holder and the Company, or, if they cannot
agree on an appraiser within ten (10) business days after the Company's receipt
of the Disposition Notice, each shall select an appraiser of recognized
standing, and the two appraisers shall designate a third appraiser of recognized
standing, whose appraisal shall be determinative of such value. The cost of such
appraisal shall be shared equally by the Holder and the Company. The closing
shall then be held on the later of (i) the date of five (5) business days
following delivery of the Exercise Notice or (ii) the date ten (10) business
days after such cash valuation shall have been made.
(d) Non-Exercise of Right. In the event an Exercise Notice is not
given to the Holder within ten (10) business days following the date of the
Company's receipt of the Disposition Notice, the Holder shall have a period of
thirty (30) days thereafter, in which to sell or otherwise dispose of the Target
Shares upon terms and conditions (including the purchase price) no more
favorable to the third-party purchaser than those specified in the Disposition
Notice. The third-party purchaser shall acquire the Target Shares free and clear
of all the terms and provisions of this Transfer Right of First Refusal. In the
event the Holder does not sell or otherwise dispose of the Target Shares within
the specified thirty (30) day period, the Transfer Right of First Refusal shall
continue to be applicable to any subsequent disposition of the Target Shares by
the holder of such Target Shares.
(e) Partial Exercise or Right. In the event the Company (or its
assignees) make a timely exercise of the Transfer Right of First Refusal with
respect to a portion, but not all, of the Target Shares specified in the
Disposition Notice, the Holder shall (i) sell to the Company (or its assignees)
the portion of the Target Shares which the Company (or its assignees) has
elected to purchase, such sale to be effected in substantial conformity with the
provisions of Section 18(c), and (ii) sell or dispose of the remaining Target
Shares to a third party purchaser in compliance with Section 18(d).
19. Board Observation Rights. Until the six year anniversary of the
First Closing Date (as defined in the Purchase Agreement), each of Gilbert
Global Equity Partners, L.P. ("Gilbert") and AIG Asian Opportunity Fund, L.P.
("AIG") shall have the right to have a representative attend all meetings of the
Board of Directors of the Company in a nonvoting observer capacity (and, in that
capacity, receive all notices, minutes and consents provided to the Company's
Board of Directors), provided that such representatives (i) shall be reasonably
acceptable to the Board of Directors, (ii)
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shall agree to be bound by the Company's insider trading compliance policies as
currently existing and as may be modified from time to time, and (iii) shall
execute a confidentiality agreement in form reasonably acceptable to the
Company. Such representatives shall be entitled to consult with and advise
management of the Company on significant business issues and to meet with
management of the Company no more than once per fiscal quarter upon 30 days'
notice to the Company. Notwithstanding anything to the contrary in this Section
19, at such time that either of (a) Gilbert and funds Affiliated with Gilbert,
or (b) AIG and funds Affiliated with AIG, respectively, hold fewer than
1,250,000 Registrable Securities (as adjusted for stock splits, stock dividends,
recapitalizations and similar events), then the rights of such party to board
observation rights shall irrevocably terminate.
20. Governing Law. This Agreement and the legal relations between the
parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of Delaware without regard to its conflict of laws
principles. The parties hereto agree to submit to the non-exclusive jurisdiction
of the federal and state courts of the State of Delaware with respect to the
breach or interpretation of this Agreement or the enforcement of any and all
rights, duties, liabilities, obligations, powers, and other relations between
the parties arising under this Agreement.
21. Survival. The representations, warranties, covenants and agreements
made herein shall survive the execution and delivery of this Agreement and, in
the case of indemnification obligations set forth in Section 12, shall survive
the termination of the other provisions of this Agreement.
22. Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto,
provided, however, that except as otherwise provided herein the rights of
Purchasers shall not be assignable without the consent of the Company.
23. Entire Agreement; Amendment. This Agreement and the other documents
delivered pursuant hereto at the Closing (as defined in the Purchase Agreement)
constitute the full and entire understanding and agreement between the parties
with regard to the subject matter hereof and thereof, and no party shall be
liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or therein.
Any provision of this Agreement may be amended, waived or modified only upon the
written consent of (i) the Company and (ii) the holders of a majority of the
outstanding shares of the Registrable Securities, acting together as a single
class.
24. Notices, Etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon delivery to the party to be notified in person by facsimile or by courier
service or five days after deposit with the United States mail, by registered or
certified mail, postage prepaid, addressed (a) if to a Purchaser, at such
Purchaser's address set forth in Exhibit A to the Purchase Agreement, or at such
other address as such Purchaser shall have furnished to the Company in writing,
or (b) if to any other Holder of any Shares, at such address as such holder
shall have furnished the Company in writing, or, until any such Holder so
furnishes an address to the Company, then to and at the address of the last
holder of such Shares who has so furnished an address to the Company, or (c) if
to the Company, one copy should be sent to the Company's address and facsimile
number set forth at the end of this Agreement and addressed to the
15
16
attention of the Chief Financial Officer, or at such other address as the
Company shall have furnished to the Purchasers (with a copy to Bruce M.
McNamara, Wilson Sonsini Goodrich & Rosati, 650 Page Mill Road, Palo Alto,
California 94304; facsimile: (650) 493-6811).
25. Delays or Omissions. Except as expressly provided herein, no delay
or omission to exercise any right, power or remedy accruing to any Holder of any
Registrable Securities, upon any breach or default of the Company under this
Agreement, shall impair any such right, power or remedy of such Holder nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any Holder of any
breach or default under this Agreement, or any waiver on the part of any Holder
of any provisions or conditions of this Agreement, must be in writing and shall
be effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
Holder, shall be cumulative and not alternative.
26. Expenses. Except as otherwise provided herein, the Company, the
Purchasers and the Holders shall each bear their own expenses incurred on its
behalf with respect to this Agreement and the transactions contemplated hereby.
27. Injunctive Relief. Each of the parties hereto acknowledges and
agrees that it is impossible to measure in money the damages which will occur by
reason of the failure of any other party hereto to perform its obligations set
forth in this Agreement. Therefore, each of the parties hereto shall have the
right to specific performance of such obligations, and if any party hereto shall
have the right to specific performance of such obligations, and if any party
hereto shall institute any action or proceeding to enforce the provisions
hereof, each of the parties hereto hereby waives the claim or defense that the
party instituting such action or proceeding has an adequate remedy at law.
28. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
29. Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision.
30. Titles and Subtitles. The Titles and Subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
31. No Impairment. The Company will not take any action, or permit any
change to occur, with respect to the Registrable Securities which would
adversely affect the ability of the holders of the Registrable Securities to
include such Registrable Securities in a registration statement undertaken
pursuant to this Agreement or which would adversely affect the marketability of
such Registrable Securities in any such registration.
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IN WITNESS WHEREOF, the undersigned have executed this Stockholder
Rights Agreement as of the date set forth above.
"COMPANY"
AMKOR TECHNOLOGY, INC.
By: /s/ Kenneth Joyce
-----------------------------------------
Kenneth T. Joyce, Chief Financial Officer
Address: 1345 Enterprise Drive
West Chester, PA 19380
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
18
"PURCHASERS"
AIG ASIAN OPPORTUNITY FUND, L.P.
By: /s/ Peter Yu
-----------------------------------------
Name: Peter Yu
Title: Director
Address: c/o Maples and Calder
P.O. Box 309
Ugland House, South Church Street
Cayman Islands
with a copy to:
AIG Investment Corporation (Asia) Ltd.,
31st Floor, NatWest Tower
Times Square, 1 Matheson Street
Hong Kong
Telephone: 852-2143-1383
Fax: 852-25061061
Attention: Ms. Ada Tse
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
19
AIG ASIAN OPPORTUNITY PARALLEL FUND, C.V.
By: /s/ Peter Yu
-----------------------------------------
Name: Peter Yu
Title: Director
Address: c/o Maples and Calder
P.O. Box 309
Ugland House, South Church Street
Cayman Islands
with a copy to:
AIG Investment Corporation (Asia) Ltd.
31st Floor, NatWest Tower
Times Square, 1 Matheson Street
Hong Kong
Telephone: 852-2143-1383
Fax: 852-25061061
Attention: Ms. Ada Tse
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
20
AMERICAN INTERNATIONAL ASSURANCE
COMPANY LIMITED
By: /s/ Cesar Zalamea
-----------------------------------------
Name:
Title:
Address: 1 Stubbs Road
Hong Kong
Telephone: 852-2832-1200
Fax: 852-2591-0678
Attention: Mr. Cesar Zalamea
AIG GLOBAL EMERGING MARKETS FUND, L.L.C.
By: /s/ Peter Yu
-----------------------------------------
Name: Peter Yu
Title: Director
Address: c/o AIG Capital Partners Inc.
175 Water Street
New York, NY 10038
Telephone: (212) 458-2156
Fax: (212) 458-2153
Attention: Mr. Peter Yu
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
21
AIG GLOBAL EMERGING MARKETS PARALLEL
FUND, L.P.
By: /s/ Peter Yu
-----------------------------------------
Name: Peter Yu
Title: Director
Address: c/o AIG Capital Partners Inc.
175 Water Street
New York, NY 10038
Telephone: (212) 458-2156
Fax: (212) 458-2153
Attention: Mr. Peter Yu
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
22
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By: /s/ Sheryl Schwartz
-----------------------------------------
Name: Sheryl Shwartz
Title: Managing Director, Private
Placements
Address: 730 Third Avenue
4th Floor
New York, NY 10017
Attention: Ms. Sheryl Schwartz
Telephone: (212) 956-5905
Fax: (212) 907-2454
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
23
GILBERT GLOBAL EQUITY PARTNERS, L.P.
By: /s/ Eric Wei
-----------------------------------------
Eric H.C. Wei, Authorized Signatory
Address: c/o GGEP Investments, L.L.C.
785 Smith Ridge Road
New Canaan, CT 06846
with copies to:
Gilbert Global Equity Capital Asia, Ltd.
1302 Bank of America Tower
12 Harcourt Road
Hong Kong
Attention: Eric H.C. Wei
Fax: 011-852-2970-0078
and
Mayer, Brown & Platt
1675 Broadway
New York, NY 10019
Attention: Thomas M. Vitale
Fax: (212) 262-1910
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
24
GILBERT GLOBAL EQUITY PARTNERS
(BERMUDA), L.P.
By: /s/ Eric Wei
-----------------------------------------
Eric H.C. Wei, Authorized Signatory
Address: Claredon House
2 Church Street
P.O. Box 666
Hamilton HM EX
BERMUDA
with copies to:
Gilbert Global Equity Capital Asia, Ltd.
1302 Bank of America Tower
12 Harcourt Road
Hong Kong
Attention: Eric H.C. Wei
Fax: 011-852-2970-0078
and
Mayer, Brown & Platt
1675 Broadway
New York, NY 10019
Attention: Thomas M. Vitale
Fax: (212) 262-1910
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
25
GGEP-GECC EQUITY PARTNERS, L.P.
By: /s/ Eric Wei
-----------------------------------------
Eric H.C. Wei, Authorized Signatory
Address: c/o GGEP Investments, L.L.C.
785 Smith Ridge Road
New Canaan, CT 06846
with copies to:
Gilbert Global Equity Capital Asia, Ltd.
1302 Bank of America Tower
12 Harcourt Road
Hong Kong
Attention: Eric H.C. Wei
Fax: 011-852-2970-0078
and
Mayer, Brown & Platt
1675 Broadway
New York, NY 10019
Attention: Thomas M. Vitale
Fax: (212) 262-1910
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
26
INVESTOR (GUERNSEY) LIMITED
By: /s/ David Jeffreys
-----------------------------------------
David Jeffreys, Managing Director
Address: c/o Abacus Financial Services
National Westminster House
Le Truchot, St. Peters Port
Guernsey (Channel Islands)
United Kingdom
Fax: 44-1481-728-493
By: /s/ Marc Hollander
-----------------------------------------
Marc Hollander, Managing Director
Address: c/o Abacus Financial Services
National Westminster House
Le Truchot, St. Peters Port
Guernsey (Channel Islands)
United Kingdom
Fax: 31-205-77-66-09
with copies to:
Expibel B.V.
World Trade Center
Strawinskylaan 507, Tower A, Floor 5
1077 XX, Amsterdam
Attention: Marc Hollander
Fax: 31-205-77-66-09
and to:
Paul, Weiss, Rifkind, Wharton & Garrison
13/F, Hong Kong Club Building
Central, 3A Chater Road
Hong Kong
Attention: John E. Lange, Esq.
Fax: 852-2536-9622
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
27
GLOBAL VENTURE TRADING LIMITED
By: NOMITOR LIMITED
By: /s/ Peter Brown
-----------------------------------------
Peter G. Brown, Director
Address: c/o Wilkinson & Grist
Prince's Building
6th Floor
Chater Road, Hong Kong
Attention: Ms. Rebecca Leung
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
28
CJY INVESTMENT LIMITED
By: /s/ Dean Park
-----------------------------------------
Name: Dean Park
Title: President
Address: c/o Wilkinson & Grist
Prince's Building
6th Floor
Chater Road, Hong Kong
Attention: Ms. Rebecca Leung
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
29
FAR EAST INVESTMENTS LIMITED
By: /s/ Dean Park
-----------------------------------------
Name: Dean Park
Title: President
Address: c/o Wilkinson & Grist
Prince's Building
6th Floor
Chater Road, Hong Kong
Attention: Ms. Rebecca Leung
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
30
BELLWETHER INVESTMENT PTE LTD
By: /s/ Ng Wai Meng
-----------------------------------------
Ng Wai Meng, Authorized Signatory
Address: 250, North Bridge Road
#38-00 Raffles City Tower
Singapore 179101
SINGAPORE
with copies to:
GIC Special Investments Pte Ltd
331, North Bridge Road
#09-01/06 Odeon Towers
Singapore 188720
SINGAPORE
Attention: Ng Wai Meng
Telephone: (65) 330-6969
Fax: (65) 330-6891
SCP PRIVATE EQUITY PARTNERS II, L.P.
By: SCP PRIVATE EQUITY II GENERAL
PARTNER, L.P.
Its General partner
By: SCP Private Equity II General Partner,
LLC
By: /s/ Winston Churchill
-----------------------------------------
Winston J. Churchill
A Manager
Address: SCP Private Equity Partners II,
L.P.
435 Devon Park Drive
Building 300
Wayne, PA 19087
Attention: Winston J. Churchill
Telephone: (610) 254-4170
Fax: (610) 975-9546
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
31
DB Capital Investors, L.P.
By: /s/ Steven K. Dollinger
-----------------------------------------
Steven K. Dollinger
Address: c/o DB Capital Partners
130 Liberty Street
25th Floor
New York, NY 10006
Attention: Heide Silverstein
[SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT]
32
EXHIBIT A
ADOPTION AGREEMENT
This Adoption Agreement ("Adoption Agreement") is executed by the
undersigned (the "Transferee") pursuant to the terms of that certain Stockholder
Rights Agreement dated as of ______, 2000 (the "Agreement") by and among Amkor
Technology, Inc. (the "Company") and the Purchasers of the Company's Common
Stock issued to the Purchasers pursuant to the Purchase Agreement. Capitalized
terms used but not defined herein shall have the respective meanings ascribed to
such terms in the Agreement. By the execution of this Adoption Agreement, the
Transferee agrees as follows:
1. Acknowledgment. Transferee acknowledges that Transferee is acquiring
certain shares of the capital stock of the Company (the "Stock"), subject to the
terms and conditions of the Agreement.
2. Agreement. Transferee agrees that in connection with the acquisition
of the Stock, Transferee shall be bound by and subject to the obligations of a
Holder as set forth in the Agreement. Notwithstanding the foregoing, if
Transferee is a limited partner of either of a Holder or an Affiliate of a
Holder and received the Stock in a distribution from such Holder or Affiliate,
Transferee shall not be bound by and subject to the terms of Section 11 of the
Agreement.
3. Notice. Any notice required or permitted by the Agreement shall be
given to Transferee at the address listed beside Transferee's signature below.
EXECUTED AND DATED this _____ day of _______________________, _____.
TRANSFEREE:
By:
-----------------------------------------
Name and Title
Address:
------------------------------------
------------------------------------
Fax
------------------------------------
Acknowledged:
AMKOR TECHNOLOGY, INC.
By:
-----------------------------------
Title:
--------------------------------