Exhibit 10.20
AMENDMENT TO SHARE SALE AND PURCHASE AGREEMENT AND
SHAREHOLDERS AGREEMENT
This Amendment to Share Sale and Purchase Agreement and Shareholders Agreement
(this "Amendment") is made and entered into as of the 27th day of September
2002, by and among:
AMKOR TECHNOLOGY, INC., a Delaware corporation with a place of business at 1345
Enterprise Drive, West Chester, Pennsylvania 19380, U.S.A ("ATI");
DONGBU CORPORATION, a Korean corporation with its registered office located at
Dongbu Financial Center, 891-10 Daechi-dong, Kangnam-ku, Seoul, Korea ("Dongbu
Corporation");
DONGBU FIRE INSURANCE CO., LTD., a Korean corporation with its registered office
located at Dongbu Financial Center, 891-10 Daechi-dong, Kangnam-ku, Seoul, Korea
("Dongbu Fire"); and
DONGBU LIFE INSURANCE CO., LTD., a Korean corporation with its registered office
located at Dongbu Financial Center, 891-10 Daechi-dong, Kangnam-ku, Seoul, Korea
("Dongbu Life").
Dongbu Corporation, Dongbu Fire and Dongbu Life shall hereinafter be
collectively referred to as "Dongbu". ATI and Dongbu shall hereinafter be
referred to individually as a "Party" and collectively as the "Parties".
RECITALS:
A. Anam Semiconductor, Inc., a Korean corporation with its registered office
located at 154-17, Samsung-dong, Kangnam-ku, Seoul, Korea (the "Company")
issued, and Dongbu Fire and Dongbu Life subscribed for, an aggregate of
12,000,000 common shares of the Company, on July 26, 2002.
B. ATI and Dongbu Corporation entered into a certain share sale and purchase
agreement dated July 10, 2002 (the "Share Sale and Purchase Agreement")
pursuant to which ATI agreed to sell, and Dongbu Corporation agreed to
purchase, an aggregate of 20,000,000 common shares of the Company.
C. ATI and Dongbu entered into a certain shareholders agreement dated July
29, 2002 (the "Shareholders Agreement") in which the parties thereto
memorialized their agreements with respect to their joint ownership and
management of the Company after the closing of the share sale and purchase
transaction under the Share Sale and Purchase Agreement.
D. The parties to this Amendment desire to amend the Share Sale and Purchase
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Agreement and the Shareholders Agreement on the terms and conditions set
forth herein.
Now, it is hereby agreed as follows:
ARTICLE 1. DEFINITIONS & INTERPRETATION
1.1 The terms used herein shall have the same meanings as in the Share Sale
and Purchase Agreement and the Shareholders Agreement unless otherwise
defined herein.
1.2 Except where the context otherwise requires, each gender shall include the
other genders and the singular shall include the plural and vice versa,
and references to persons shall include bodies corporate and incorporate.
1.3 Headings of Articles in this Amendment are for convenience only and do not
substantively affect the terms of this Amendment.
ARTICLE 2. AMENDMENTS TO THE SHARE SALE AND PURCHASE AGREEMENT
ATI and Dongbu Corporation hereby agree to amend the Share Sale and Purchase
Agreement as follows:
2.1 Article 2.3 shall be amended and restated in its entirety as follows:
"Payment Method. Purchaser shall pay to Seller the Purchase Price by means
of cash payments and delivery of the Promissory Notes in the amounts and
in the manner set forth in Articles 3,1, 3.2 and 3.5."
2.2 Article 3.3 shall be amended by replacing "August 28, 2002" in the third
line thereof with "September 30, 2002".
2.3 Article 3.5 shall be amended and restated in its entirety as follows:
"Closing Deliveries of Purchaser. At the Closing, Purchaser shall pay, or
have paid, to Seller the remaining unpaid portion of the Purchase Price,
(i) by payment in cash in immediately available funds to the bank account
designated in writing by Seller in advance, KRW15,000,000,000 (against
which payment Seller shall deliver, or have delivered, to Purchaser a
receipt, duly executed by Seller, certifying the receipt by Seller of such
payment) and (ii) by delivery, or having delivered, to Seller or its
designated affiliate (subject to Korean foreign exchange regulations) the
following:
(a) a promissory note in the amount of KRW21,000,000,000, bearing
interest at a rate of 5% per annum, payable 12 months after the
Closing Date; and
(b) a promissory note in the amount of KRW21,000,000,000, bearing
interest at a rate of 5% per annum, payable on February 10, 2004.
Each promissory note referred to in (a) and (b) of this Article 3.5 is
referred to as a "Promissory Note" and together are referred to as the
"Promissory Notes". The
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Promissory Notes shall be issued by Purchaser and payable at bank
(eun-haeng-do-yak-sok-eo-eum). The Promissory Notes shall be secured by
Purchaser's pledge to Seller of 10,000,000 of the Sale Shares (the
"Pledge"). Seller (as pledgee) shall hold the share certificates in
respect of the pledged Shares through a third party assistant-possessor
for Seller (jeom-yu-bo-jo-ja) mutually agreeable to Seller and Purchaser.
The Promissory Notes shall be in the form of Exhibit 1 attached hereto,
and the Pledge shall be in the form of Exhibit 2 attached hereto.
2.4 Article 3.6 shall be deleted.
2.5 Articles 5.1 (b) through (g) shall be amended so that each representation
and warranty therein by Seller with respect to the Share Sale and Purchase
Agreement shall apply mutatis mutandis to the Promissory Notes and the
Pledge.
2.6 Article 7.2.3 shall be deleted.
2.7 Article 7.2.4 shall be renumbered as Article 7.2.3 and shall be amended
and restated in its entirety as follows:
"Shareholders Agreement. The Shareholders Agreement has not been
terminated."
2.8 Article 8.3 shall be amended and restated in its entirety as follows:
"Shareholders Agreement. The Shareholders Agreement has not been
terminated."
2.9 Article 10.1(e) shall be amended by replacing "September 13, 2002" in the
first line thereof with "October , 2002".
2.10 Exhibits 1 and 2 attached hereto shall be added as exhibits to the Share
Sale and Purchase Agreement.
ARTICLE 3. AMENDMENTS TO THE SHAREHOLDERS AGREEMENT
ATI and Dongbu hereby agree to amend the Shareholders Agreement as follows:
3.1 Article 2.2 shall be amended by replacing "within 7 days after the payment
of the Interim Payment (as defined in the Share Sale and Purchase
Agreement)" in the first and second lines thereof with "no later than
October 7, 2002".
3.2 Article 3.4(a) shall be amended by adding at the end thereof "; provided
that the integration of the Company with Dongbu Electronics shall be
excluded".
3.3 Article 3.4(b) shall be amended by adding at the end thereof "; provided
that share issuance in connection with the merger between the Company and
Dongbu Electronics or contribution in kind of Dongbu Electronics shares as
an interim step toward such merger shall be excluded.
3.4 Article 3.4(c) shall be amended and restated as follows:
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"(A) prior to the date on which the Foundry Agreement (as defined in
Article 4.3) has been terminated and the fair value of the Foundry
Agreement has been fully paid by the Company in accordance with Article
4.3, any transaction whose contract value together with that of all other
transactions in a fiscal year exceeds KRW50,000,000,000 or any transaction
between the Company and its directors, officers, employees, major
shareholders or affiliates or directors, officers, employees of its major
shareholders or affiliates; provided that (i) employment contracts in the
ordinary course of business, (ii) such transactions which are on an arm's
length basis and normal commercial terms and (iii) any transaction to be
made in accordance with Sections 4.3, 4.4 and 4.5 hereof, shall be
excluded; (B) after the Foundry Agreement has been terminated and the fair
value of the Foundry Agreement has been fully paid by the Company in
accordance with Section 4.3, any transaction, whose contract value
together with that of all other such transactions in a fiscal year exceeds
KRW50,000,000,000, between the Company and its directors, officers,
employees, major shareholders or affiliates or directors, officers,
employees of its major shareholders or affiliates; provided that (i)
employment contracts in the ordinary course of business, (ii) such
transactions which are on an arm's length basis and normal commercial
terms, (iii) any transaction to be made in accordance with Sections 4.3,
4.4 and 4.5 hereof and (iv) any transaction between the Company and Dongbu
Electronics, shall be excluded; and (C) after the payment in full of the
Promissory Notes (as defined in the Share Sale and Purchase Agreement),
this clause (c) of Article 3.4 shall be deleted."
3.5 Article 4.1 shall be amended by replacing the phrase "under terms mutually
satisfactory" in the second line thereof with "in accordance with a merger
ratio (the ratio of Company shares to Dongbu Electronics shares upon which
the merger will be consummated) mutually satisfactory" and by adding at
the end of such Article 4.1 the following:
"Pending such merger, ATI and Dongbu shall cooperate and consult with each
other in good faith as to the management of the Company and Dongbu
Electronics with the goal of aligning the activities and policies of the
Company and Dongbu Electronics toward the mutual benefit of both
companies; provided, however, that Dongbu shall have no obligations of any
kind toward ATI with respect to the management of Dongbu Electronics other
than such consultation and except as set forth in Article 3.7. In the
event the Shareholders cannot agree on mutually satisfactory merger ratio
for such merger, the Shareholders shall appoint an independent financial
adviser in Korea mutually agreeable to the Shareholders, and such
financial advisor shall determine the fair merger ratio. The Shareholders
agree that the fair merger ratio as determined by the independent
financial advisor as aforesaid shall be the basis upon which the Company
and Dongbu Electronics will be merged; provided that such merger complies
with all applicable laws. ATI and Dongbu acknowledge that capital
contribution in kind of Dongbu Electronics shares into the Company may
occur as an interim step toward the above merger, in which case such
capital contribution shall be made based on a valuation of Dongbu
Electronics share mutually agreeable to the Shareholders. In the event the
Shareholders cannot mutually agree on such valuation, the procedure set
forth above for the determination of the merger ratio by an independent
financial advisor shall apply mutatis mutandis."
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3.6 Article 4.2 shall be amended by replacing the phrase "the election of
directors pursuant to Article 3.1" in the first line thereof with "the
Share Purchase Closing".
3.7 Article 4.3 shall be amended and restated in its entirety as follows:
"ATI and Dongbu acknowledge that the Foundry Agreement dated January 1,
1998 (the "Foundry Agreement") by and among ATI, Amkor Electronics, Inc.
and C.I.L. Limited (Cayman) (the "Amkor Parties") and Anam USA and the
Company will be terminated as soon as practicable and prior to the end of
2002 and that the process for agreeing to the terms and conditions of such
termination shall be as follows: (i) ATI will appoint a third party
appraiser to determine the fair value to the Amkor Parties of such Foundry
Agreement; (ii) if based on the determination of such appraiser the Amkor
Parties and the Company cannot agree on the terms and conditions of the
termination of the Foundry Agreement, which are mutually agreeable to the
Shareholders, the Company will, with the consent of Dongbu, which consent
shall not be unreasonably withheld, appoint a third party appraiser to
determine such fair value; and (iii) if based on the determinations of the
appraisers appointed by ATI and the Company, the Amkor Parties and the
Company cannot agree on the terms and conditions of the termination of the
Foundry Agreement, which are mutually agreeable to the Shareholders, the
terms and conditions of the termination of the Foundry Agreement shall be
determined pursuant to arbitration as provided in the Foundry Agreement.
Each of the Shareholders shall vote its Shares and/or instruct directors
nominated by it, as applicable, to cause the Company to terminate the
Foundry Agreement in accordance with this Section 4.3; provided the amount
paid by the Company to the Amkor Parties in consideration for their
agreement to terminate the Foundry Agreement shall not exceed
US$65,000,000 and shall not be lower than US$45,000,000."
3.8 Section 7.11 shall be amended by adding at the end thereof the following:
"In addition, ATI may upon written notice to that effect to Dongbu
terminate this Agreement if an event of default under the Promissory Notes
or the Pledge (as such terms are defined in the Share Sale and Purchase
Agreement) and such default has not been cured within all applicable grace
or cure periods. In the event of termination of this Agreement due to such
an event of default under the Promissory Notes or the Pledge, Dongbu shall
immediately cause their designated directors and officers of the Company
to resign and shall not thereafter participate in the management of the
Company."
ARTICLE 4. EFFECTIVENESS OF THE SHARE SALE AND PURCHASE AGREEMENT AND THE
SHAREHOLDERS AGREEMENT
Except as hereby amended, the Share Sale and Purchase Agreement and the
Shareholders Agreement shall remain in full force and effect.
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ARTICLE 5 GOVERNING LAW & ARBITRATION
5.1 This Amendment shall be governed by and construed in accordance with the
laws of Korea.
5.2 Section 7.2 of the Shareholders Agreement shall hereby be incorporated by
reference into this Amendment.
[signature page to follow]
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IN WITNESS WHEREOF, the Parties executed this Amendment as of the date first
above written.
AMKOR TECHNOLOGY, INC.
By /s/ JOHN N. BORUCH
________________________
Name: JOHN N. BORUCH
Title: PRESIDENT AND COO
DONGBU CORPORATION
By /s/ HO-IK PAIK
________________________
Name: HO-IK PAIK
Title: PRESIDENT AND CEO
DONGBU FIRE INSURANCE CO., LTD.
By /s/ SU KWANG LEE
________________________
Name: SU KWANG LEE
Title: PRESIDENT AND CEO
DONGBU LIFE INSURANCE CO., LTD.
By /s/ KI CHI CHANG
________________________
Name: KI CHI CHANG
Title: PRESIDENT AND CEO
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