Exhibit 10.53
NOTE PURCHASE AGREEMENT
BETWEEN
AMKOR TECHNOLOGY, INC.
AND
The Investors Named Herein
November 14, 2005
TABLE OF CONTENTS
PAGE
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SECTION 1. DEFINITIONS................................................... 1
1.1. Certain Defined Terms; Interpretation......................... 1
SECTION 2. AGREEMENT TO PURCHASE AND SELL SECURITIES..................... 3
2.1. Agreement to Purchase and Sell Securities..................... 3
2.2. The Closing................................................... 3
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY................. 3
3.1. Organization Good Standing and Qualification.................. 3
3.2. Capitalization................................................ 4
3.3. Due Authorization............................................. 4
3.4. Valid Issuance................................................ 4
3.5. Compliance with Securities Laws............................... 5
3.6. Governmental Consents......................................... 5
3.7. Non-Contravention............................................. 5
3.8. Litigation.................................................... 5
3.9. Compliance with Law and Charter Documents..................... 6
3.10. SEC Documents................................................. 6
SECTION 4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF INVESTORS....... 7
4.1. Investigation; Economic Risk.................................. 7
4.2. Purchase for Own Account...................................... 8
4.3. Exempt from Registration; Restricted Securities............... 8
4.4. Accredited Investors.......................................... 8
4.5. Legends....................................................... 8
4.6. Due Authorization............................................. 9
4.7. Governmental Consents......................................... 9
4.8. Non-Contravention............................................. 9
SECTION 5. AFFIRMATIVE COVENANTS OF THE COMPANY.......................... 9
5.1. Listing of Shares............................................. 9
5.2. Use of Proceeds............................................... 10
5.3. Expenses...................................................... 10
SECTION 6. CLOSING CONDITIONS............................................ 10
6.1. Conditions to Each Investors' Obligations..................... 10
6.2. Conditions to the Company's Obligations....................... 12
SECTION 7. MISCELLANEOUS................................................. 13
7.1. Governing Law................................................. 13
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TABLE OF CONTENTS
(CONTINUED)
PAGE
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7.2. Successors and Assigns........................................ 13
7.3. Entire Agreement.............................................. 13
7.4. Notices....................................................... 13
7.5. Amendments.................................................... 15
7.6. Delays or Omissions........................................... 15
7.7. Legal Fees.................................................... 16
7.8. Titles and Subtitles.......................................... 16
7.9. Counterparts.................................................. 16
7.10. Severability.................................................. 16
7.11. Dispute Resolution............................................ 16
7.12. No Third Parties Benefited.................................... 16
7.13. Meaning of Include and Including.............................. 17
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NOTE PURCHASE AGREEMENT
This Note Purchase Agreement (this "Agreement") is entered into as of
November 14, 2005 by and between Amkor Technology, Inc., a Delaware corporation
(the "Company" or the "Corporation") and the investors named on Schedule 1
hereto (each an "Investor" and collectively, the "Investors").
WHEREAS, Investors are willing, pursuant to the terms and conditions of
this Agreement, to purchase from the Company an aggregate principal amount of
$100,000,000 of Notes (as defined below) convertible into shares of the
Company's Common Stock, par value $0.001 per share (the "Common Stock");
WHEREAS, at the closing of the transactions contemplated hereby, the
Company and Investors will enter into the Investors Rights Agreement and the
Voting Agreement (each as defined below), and the Company and the Trustee will
enter into the Indenture (as defined below).
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1.
DEFINITIONS
1.1. Certain Defined Terms; Interpretation. The following terms shall have
the following respective meanings.
"Affiliate" shall mean, with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with, such other
Person. For purposes of this definition, "control" when used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise; the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Business Day" shall mean any day on which commercial banks are not
authorized or required to close in New York, New York.
"Common Stock" shall have the meaning set forth in the recitals to this
Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, all as the same shall be
in effect from time to time.
"Indenture" shall mean the Indenture, dated as of November 18, 2005,
between the Company and the Trustee thereunder, pursuant to which the Notes are
being issued, as amended, modified or supplemented from time to time in
accordance with the terms thereof.
"Investors Rights Agreement" shall mean the Investors Rights Agreement,
dated as of the date hereof, between the Company and Investors.
"Nasdaq" shall mean the Nasdaq National Market.
"Notes" shall mean the 6 1/4% Convertible Subordinated Notes due 2013
issued by the Company pursuant to the Indenture.
"Person" shall mean individual, corporation, company, voluntary
association, partnership, joint venture, limited liability company, trust,
estate, unincorporated organization, governmental authority or other entity.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, all as the same shall be in effect
from time to time.
"Subsidiary" shall mean each Person in which the Company owns, directly or
indirectly, 50% or more of the voting interests or of which the Company
otherwise has the right to direct the management.
"Transaction Documents" shall mean this Agreement, the Investors Rights
Agreement, the Voting Agreement and the Indenture.
"Trustee" shall mean U.S. Bank National Association, as trustee under the
Indenture.
"Voting Agreement" shall mean that Voting Agreement, dated as of the date
hereof, between the Company and the Investors.
1.2 Index of Other Defined Terms. In addition to the terms defined above,
the following terms shall have the respective meanings given thereto in the
sections indicated below:
Defined Term Section
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"Action" 3.8
"Agreement" Preamble
"Audited Financial Statements" 3.10(b)
"Balance Sheet Date" 3.10(b)
"Closing" 2.2
"Common Stock" Recitals
"Company" Preamble
"Form 10-K" 3.10(a)
"Form 10-Q's" 3.10(a)
"GAAP" 3.10(b)
"HLHZ" 6.1(h)
"Holding Period Termination Date" 4.3
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Defined Term Section
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"Investors" Preamble
"Material Adverse Effect" 3.1
"Purchase Price" 2.1
"SEC Documents" 3.10(a)
"Underlying Securities" 3.4(b)
SECTION 2.
AGREEMENT TO PURCHASE AND SELL SECURITIES.
2.1. Agreement to Purchase and Sell Securities. The Company hereby agrees
to issue to each Investor at the Closing (as defined below) the principal amount
of Notes set forth next to each Investor's name on Schedule I and each Investor
agrees to purchase from the Company at the Closing, for an aggregate purchase
price set forth next to each Investor's name on Schedule I (together, "Purchase
Price"), the Notes.
2.2. The Closing. The purchase and sale of the Notes shall take place at
the offices of Wilson Sonsini Goodrich & Rosati, P.C., 650 Page Mill Road, Palo
Alto, California 94304, at 10:00 a.m. California time, on November 18, 2005, or
at such other time and place as the Company and Investors mutually agree upon
(which time and place is referred to in this Agreement as the "Closing"). At the
Closing, the Company will deliver to each Investor a certificate representing
the Notes being purchased by such Investor, against delivery to the Company by
such Investor of the consideration set forth in Section 2.1 by wire transfer of
immediately available funds to an account designated by the Company at least two
Business Days prior to the Closing.
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to each Investor that the
statements in this Section 3 are true and correct, except as disclosed in the
SEC Documents (as defined below):
3.1. Organization Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all corporate power and authority required to
(a) carry on its business as presently conducted, and (b) enter into the
Transaction Documents, to issue the Notes and the shares of Common Stock
issuable upon conversion of the Notes pursuant to the Indenture and to
consummate the transactions contemplated hereby and thereby. The Company is
qualified to do business and is in good standing in each jurisdiction in which
the failure to so qualify would have a Material Adverse Effect. As used in this
Agreement, "Material Adverse Effect" means a material adverse effect, or a group
of such effects which are related, on the business, operations, condition
(financial or otherwise) or results of operations, of the applicable party and
its Subsidiaries, taken as a whole.
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3.2. Capitalization. The authorized capital stock of the Company conforms
in all material respects to the description thereof in the SEC Documents.
3.3. Due Authorization. The Company has the requisite corporate power and
authority to enter into the Transaction Documents and to perform its obligations
hereunder and thereunder. The execution and delivery of the Transaction
Documents and performance by the Company of its obligations hereunder and
thereunder, including without limitation, the issuance of the Notes, have been
duly authorized by all necessary corporate action on the part of the Company
(including its directors and stockholders). The Transaction Documents, when
executed and delivered by the parties thereto, will constitute, valid and
legally binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except (a) as may be limited by (i)
applicable bankruptcy, insolvency, reorganization or others laws of general
application relating to or affecting the enforcement of creditors' rights
generally and (ii) the effect of rules of law governing the availability of
equitable remedies and (b) as rights to indemnity or contribution may be limited
under federal or state securities laws or by principles of public policy
thereunder.
3.4. Valid Issuance.
(a) Valid Issuance and Enforceability of Notes. The Notes have been
duly authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Investors in
accordance with the terms of this Agreement, will be valid and binding
obligations of the Company, enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity, and will be entitled to the benefits
provided for in the Indenture.
(b) Valid Issuance of Common Stock. The Common Stock initially
issuable upon conversion of the Notes (the "Underlying Securities") and reserved
for issuance upon conversion of the Notes has been duly authorized and reserved
and, when issued upon conversion of the Notes in accordance with the terms of
the Notes and the Indenture, will be validly issued, fully paid and
non-assessable, and the issuance of the Underlying Securities will not be
subject to any preemptive or similar rights.
3.5. Compliance with Securities Laws. Assuming the accuracy of the
representations made by Investors in Section 4 hereof, the Notes and the shares
of Common Stock issuable upon conversion of the Notes pursuant to the Indenture
will be issued to Investors in compliance with applicable exemptions from (i)
the registration and prospectus delivery requirements of the Securities Act and
(ii) the registration and qualification requirements of all applicable
securities laws of the states of the United States.
3.6. Governmental Consents. No consent, approval, order or authorization
of, or registration qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated by
this Agreement, except: (i) the filing of a current report on Form 8-K by the
Company with the SEC following the Closing; (ii) the filing of such
qualifications or
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filings under the Securities Act and the regulations thereunder and all
applicable state securities laws as may be required in connection with the
transactions contemplated by this Agreement; and (iii) as expressly required or
contemplated by the terms of the Transaction Documents. All such qualifications
and filings in connection with the issuance of the Notes have been made or are
effective.
3.7. Non-Contravention. The execution, delivery and performance of the
Transaction Documents by the Company, and the consummation by the Company of the
transactions contemplated hereby and thereby, do not and will not (i) contravene
or conflict with the Certificate of Incorporation or Bylaws of the Company, as
amended; (ii) constitute a violation of any provision of any federal, state,
local or foreign law binding upon or applicable to the Company; or (iii)
constitute a default or require any consent under, give rise to any right of
termination, cancellation or acceleration of, or to a loss of any benefit to
which the Company is entitled under, or result in the creation or imposition of
any lien, claim or encumbrance on any assets of the Company under, any material
contract to which the Company is a party or any permit, license or similar right
relating to the Company or by which the Company may be bound, except in the case
of clause (ii) and clause (iii) as, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect.
3.8. Litigation. There is no action, suit, proceeding, claim, arbitration
or investigation ("Action") pending: (a) against the Company, its properties or
assets or, to the best of the Company's knowledge, against any officer, director
or employee of the Company in connection with such officer's, director's or
employee's relationship with, or actions taken on behalf of, the Company, which
the Company believes is reasonably likely to have a Material Adverse Effect, or
(b) that seeks to prevent, enjoin, alter or delay the transactions contemplated
by this Agreement. The Company is not a party to or subject to the provisions of
any order, writ, injunction, judgment or decree of any court or government
agency or instrumentality which it believes is reasonably likely to have a
Material Adverse Effect. No Action by the Company is currently pending nor does
the Company intend to initiate any Action which it believes is reasonably likely
to have a Material Adverse Effect.
3.9. Compliance with Law and Charter Documents. The Company is not in
violation or default of any provisions of its Certificate of Incorporation or
Bylaws, both as amended. The Company has complied and is in compliance with all
applicable statutes, laws, and regulations and executive orders of the United
States of America and all states, foreign countries and other governmental
bodies and agencies having jurisdiction over the Company's business, assets or
properties, except for any violations that would not, either individually or in
the aggregate, have a Material Adverse Effect.
3.10. SEC Documents.
(a) Reports. The Company has filed all required forms, reports and
documents with the SEC since December 31, 2004. The Company has furnished or
made available to Investors prior to the date hereof copies of its Annual Report
on Form 10-K for the fiscal year ended
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December 31, 2004 ("Form 10-K"), its Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 2005, June 30, 2005 and September 30, 2005 (the
"Form 10-Q's"), and all other registration statements, reports and proxy
statements filed by the Company with the SEC on or after December 31, 2004 (the
Form 10-K, the Form 10-Q's and such registration statements, reports and proxy
statements are collectively referred to herein as the "SEC Documents"). Each of
the SEC Documents, as of the respective date thereof (or if amended or
superseded by a filing prior to the closing date of this Agreement, then on the
date of such filing), did not, and each of the registration statements, reports
and proxy statements filed by the Company with the SEC after the date hereof and
prior to the Closing will not, as of the date thereof (or if amended or
superseded by a filing prior to the date of this Agreement, then on the date of
such filing), contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading. The Company is
not a party to any material contract, agreement or other arrangement which was
required to have been filed as an exhibit to the SEC Documents that was not so
filed.
(b) Financial Statements. The SEC Documents include the Company's
audited consolidated financial statements (the "Audited Financial Statements")
for the fiscal year ended December 31, 2004 (the "Balance Sheet Date"), and its
unaudited consolidated financial statements for the nine-month period ended
September 30, 2005. The audited and unaudited consolidated financial statements
of the Company included in the SEC Documents filed prior to the date hereof
fairly present, in conformity with United States generally accepted accounting
principles ("GAAP") (except as permitted by Form 10-Q) applied on a consistent
basis (except as may be indicated in such financial statements or the notes
thereto), the consolidated financial position of the Company and its
consolidated Subsidiaries as at the dates thereof and the consolidated results
of their operations and cash flows for the periods then ended (subject to normal
year-end audit adjustments in the case of the unaudited interim financial
statements contained in the Form 10-Qs, which adjustments are not expected to be
material in amount).
(c) No Integration. Neither the Company nor any affiliate (as defined
in Rule 501(b) of Regulation D under the Securities Act) of the Company has
directly, or through any agent, (i) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any security (as defined in the
Securities Act) which is or will be integrated with the sale of the Notes in a
manner that would require the registration under the Securities Act of the
Notes, (ii) engaged in any form of general solicitation or general advertising
in connection with the offering of the Notes (as those terms are used in
Regulation D under the Securities Act), or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act, (iii) taken,
directly or indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Notes or the Underlying
Securities to facilitate the sale or resale of such Notes or the Underlying
Securities, or (iv) entered into any contractual arrangement with respect to the
distribution of the Notes or the Underlying Securities except for this Agreement
and the Company will not enter into any such arrangement except for the
Investors Rights Agreement and as may be contemplated thereby.
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(d) Registration; Qualification. It is not necessary in connection
with the offer, sale and delivery of the Notes to Investors in the manner
contemplated by this Agreement to register the Notes under the Securities Act or
to qualify the Indenture under the Trust Indenture Act of 1939, as amended.
(e) Rule 144A(d)(3). The Notes satisfy the requirements set forth in
Rule 144A(d)(3) under the Securities Act.
SECTION 4.
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF INVESTORS.
Each Investor represents, warrants and agrees, severally and not jointly,
with respect to itself only, to the Company as follows:
4.1. Investigation; Economic Risk. Each Investor has received or has had
full access to all of the information it considers necessary or appropriate to
make an informed investment decision with respect to the Notes to be purchased
by each Investor under this Agreement. Each Investor further has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Notes and the Underlying Securities
and to obtain additional information (to the extent the Company possessed such
information or could acquire it without unreasonable effort or expense)
necessary to verify any information furnished to such Investor or to which such
Investor had access. Each Investor understands that the purchase of the Notes
and any Underlying Securities involves substantial risk. Each Investor
acknowledges that it is able to fend for itself in the transactions contemplated
by this Agreement and has the ability to bear the economic risks of its
investment pursuant to this Agreement and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of this investment in the Notes and the Underlying Securities and
protecting its own interests in connection with this investment. Each Investor
has consulted, or has been provided the opportunity to consult with, independent
advisors (including counsel and tax and accounting advisors) as needed to make
its investment decision and to determine whether it is legally permitted to
purchase the Notes under applicable legal investment or similar laws or
regulations.
4.2. Purchase for Own Account. Each Investor will acquire the Notes for its
own account, not as a nominee or agent, and not with a view to or in connection
with the sale or distribution of any part thereof.
4.3. Exempt from Registration; Restricted Securities. Except as set forth
in the Investors Rights Agreement, each Investor understands that the sale and
issuance of the Notes and the Underlying Securities will not be registered under
the Securities Act on the ground that the sale provided for in this Agreement is
exempt from registration under of the Securities Act, and that the reliance of
the Company on such exemption is predicated in part on such Investors'
representations set forth in this Agreement. Each Investor understands that the
Notes and the Underlying Securities are restricted securities within the meaning
of Rule 144 under the Securities Act, and must be held
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indefinitely unless they are subsequently registered or an exemption from such
registration is available. Each Investor understands that the Company is under
no obligation to register any of the securities sold hereunder except as
provided in the Investors Rights Agreement. Each Investor understands that there
are restrictions with respect to the transfer, offer, pledge or sale of the
Notes prior to November 18, 2006 (the "Holding Period Termination Date"), and
that the Indenture for the Notes contains provisions that restrict any transfer
of the Notes by the Trustee prior to the Holding Period Termination Date.
4.4. Accredited Investors. Each Investor is, or prior to the date of the
Closing will be, an "accredited investor" as that term is defined in Rule 501(a)
of Regulation D promulgated by the SEC under the Securities Act.
4.5. Legends. Each Investor agrees that the Notes and the Underlying
Securities will bear legends and be subject to the restrictions on transfer as
provided in the Indenture. In addition, each Investor agrees that the Company
may place stop transfer orders with its transfer agents with respect to such
instruments. The appropriate portion of the legend shall be removed in
accordance with the provisions of the Indenture and the stop transfer orders
shall be removed promptly upon delivery to the Company of such satisfactory
evidence as reasonably may be required by the Company that such stop orders are
not required to ensure compliance with the Securities Act.
4.6. Due Authorization. Each Investor has the requisite authority to enter
into the Transaction Documents and to perform its obligations hereunder and
thereunder. The execution and delivery of the Transaction Documents and
performance by each Investor of its obligations hereunder and thereunder, have
been duly authorized by all necessary action on the part of such Investor. The
Transaction Documents, when executed and delivered by the parties thereto, will
constitute, valid and legally binding obligations of each Investor, enforceable
against each Investor in accordance with their respective terms, except (a) as
may be limited by (i) applicable bankruptcy, insolvency, reorganization or
others laws of general application relating to or affecting the enforcement of
creditors' rights generally and (ii) the effect of rules of law governing the
availability of equitable remedies and (b) as rights to indemnity or
contribution may be limited under federal or state securities laws or by
principles of public policy thereunder.
4.7. Governmental Consents. No consent, approval, order or authorization
of, or registration qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of each Investor is
required in connection with the consummation of the transactions contemplated by
this Agreement, except as expressly required or contemplated by the terms of the
Transaction Documents.
4.8. Non-Contravention. The execution, delivery and performance of the
Transaction Documents and the consummation by each Investor of the transactions
contemplated hereby and thereby, do not and will not (i) constitute a violation
of any provision of any federal, state, local or foreign law binding upon or
applicable to such Investor; or (ii) constitute a default or require any consent
under, give rise to any right of termination, cancellation or acceleration of,
or to a loss of any benefit to which such Investor is entitled under, or result
in the creation or imposition of any
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lien, claim or encumbrance on any assets of such Investor under, any contract to
which such Investor is a party or any permit, license or similar right relating
to such Investor or by which such Investor may be bound, except in the case of
clause (ii) as, individually or in the aggregate, would not have a Material
Adverse Effect.
SECTION 5.
AFFIRMATIVE COVENANTS OF THE COMPANY.
The Company covenants to each Investor as follows:
5.1. Listing of Shares. Within thirty (30) days following the Closing, the
Company shall file any required additional share listing application with Nasdaq
so that the shares of Common Stock issuable upon conversion of the Notes will be
listed on the Nasdaq National Market.
5.2. Use of Proceeds. The Company shall apply the proceeds of the sale of
the Notes to redeem or repurchase a portion of its outstanding $233 million
aggregate principal amount of 5.75% Convertible Subordinated Notes due 2006 in a
manner such that the Notes constitute Permitted Refinancing Indebtedness under
the Company's outstanding senior and senior subordinated notes indentures.
5.3. Expenses. Promptly following the closing of the transactions
contemplated by the Transaction Documents, the Company shall promptly pay the
reasonable out-of-pocket expenses of Investors and Investors' advisors incurred
in connection with the transaction.
SECTION 6.
CLOSING CONDITIONS.
6.1. Conditions to Each Investors' Obligations. The obligations of each
Investor to consummate the transactions contemplated by this Agreement at the
Closing are subject to the fulfillment or waiver, on or before the Closing, of
each of the following conditions:
(a) Representations and Warranties True. (i) Each of the
representations and warranties of the Company contained in Section 3 and
qualified by "Material Adverse Effect" or the term "material" will be true and
correct on and as of the date hereof and on and as of the date of the Closing,
and (ii) each of the representations and warranties of the Company contained in
Section 3 and not qualified by "Material Adverse Effect" or the term "material,"
disregarding all qualifications and exceptions contained therein relating to
materiality, will be true and correct in all material respects on and as of the
date hereof and on and as of the date of the Closing, in each case with the same
effect as though such representations and warranties had been made as of the
Closing.
(b) Performance. The Company will have performed and complied with all
agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing and
will have obtained all approvals,
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consents and qualifications necessary to complete the purchase and sale of the
Notes described herein.
(c) Compliance Certificate. The Company will have delivered to each
Investor at the Closing a certificate signed on its behalf by its Chief
Financial Officer certifying that the conditions specified in Section 6.1(a) and
(b) hereof have been fulfilled.
(d) Securities Exemptions. The offer and sale of the Notes to each
Investor pursuant to the Transaction Documents will be exempt from the
registration requirements of the Securities Act and the registration and/or
qualification requirements of all applicable state securities laws.
(e) Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the Closing and all documents
incident thereto will be reasonably satisfactory in form and substance to each
Investor, and each Investor will have received all such counterpart originals
and certified or other copies of such documents as it may reasonably request.
Such documents shall include (but not be limited to) a copy of the Certificate
of Incorporation certified as of a recent date by the Secretary of State of
Delaware as a complete and correct copy thereof, and the Bylaws of the Company
(as amended through the date of the Closing), certified by the Secretary of the
Company as true and correct copies thereof as of the Closing.
(f) Approval of Majority of Disinterested Directors. The terms and
conditions of the Transaction Documents and the issuance of the Notes and the
Underlying Securities shall have been approved by a majority of the
disinterested directors of the Board of Directors of the Company.
(g) Approval by Audit Committee. The terms and conditions of the
Transaction Documents and the issuance of the Notes and the Underlying
Securities shall have been approved by the members of the Company's Audit
Committee.
(h) Fairness Opinion. The Company shall have received an opinion from
Houlihan Lokey Howard & Zukin Financial Advisors, Inc. (the "HLHZ Opinion") to
the effect that, as of November 13, 2005 and subject to the assumptions,
qualifications and limitations set forth therein, the purchase and sale
transaction provided for in this Agreement was fair, from a financial point of
view, to (x) the "Lenders" as such term is defined in that certain Second Lien
Credit Agreement dated as of October 27, 2004 to which the Company is a party as
Borrower, and (y) the "Holders" as such term is defined in each of those certain
Indentures, dated as of May 13, 1999, February 20, 2001, May 8, 2003, and March
12, 2004, respectively, pursuant to which the Company has issued the notes
specified therein.
(i) Opinion of Company Counsel. Each Investor will have received an
opinion on behalf of the Company, dated as of the date of the Closing, from
counsel to the Company, in substantially the form set forth on Exhibit A.
(j) The Indenture. The Company and the Trustee will have executed and
delivered the Indenture and the Notes in the form attached hereto as Exhibit B.
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(k) The Investors Rights Agreement. The Company shall have executed
and delivered the Investors Rights Agreement in the form attached hereto as
Exhibit C.
(l) The Voting Agreement. The Company shall have executed and
delivered the Voting Agreement in the form attached hereto as Exhibit D.
6.2. Conditions to the Company's Obligations. The obligations of the
Company to consummate the transactions contemplated by this Agreement at the
Closing are subject to the fulfillment or waiver, on or before the Closing, of
each of the following conditions:
(a) Representations, Warranties and Agreements True. (i) Each of the
representations, warranties and agreements of Investors contained in Section 4
and qualified by "Material Adverse Effect" or the term "material" will be true
and correct on and as of the date hereof and on and as of the date of the
Closing, and (ii) each of the representations and warranties of Investor
contained in Section 4 and not qualified by "Material Adverse Effect" or the
term "material," disregarding all qualifications and exceptions contained
therein relating to materiality, will be true and correct in all material
respects on and as of the date hereof and on and as of the date of the Closing,
in each case with the same effect as though such representations and warranties
had been made as of the Closing.
(b) Performance. Each Investor will have performed and complied with
all agreements, obligations and conditions contained in this Agreement that are
required to be performed or complied with by it on or before the Closing and
will have obtained all approvals, consents and qualifications necessary to
complete the purchase and sale described herein.
(c) Payment of Purchase Price. Each Investor will have delivered to
the Company the Purchase Price of the Notes as specified in and in accordance
with Section 2.1.
(d) Securities Exemptions. The offer and sale of the Notes to
Investors pursuant to the Transaction Documents will be exempt from the
registration requirements of the Securities Act and the registration and/or
qualification requirements of all applicable state securities laws.
(e) Approval of Majority of Disinterested Directors. The terms and
conditions of the Transaction Documents and the issuance of the Notes and the
Underlying Securities shall have been approved by a majority of the
disinterested directors of the Board of Directors of the Company.
(f) Approval by Audit Committee. The terms and conditions of the
Transaction Documents and the issuance of the Notes and the Underlying
Securities shall have been approved by the members of the Company's Audit
Committee.
(g) Fairness Opinion. The Company shall have received the HLHZ
Opinion.
(h) The Indenture. The Trustee will have executed and delivered the
Indenture and the Notes in the form attached hereto as Exhibit B.
-11-
(i) The Investors Rights Agreement. Each Investor shall have executed
and delivered the Investors Rights Agreement in the form attached hereto as
Exhibit C.
(j) The Voting Agreement. Each Investor shall have executed and
delivered the Voting Agreement in the form attached hereto as Exhibit D.
SECTION 7.
MISCELLANEOUS.
7.1. Governing Law. This Agreement shall be governed in all respects by and
construed in accordance with the laws of the State of New York.
7.2. Successors and Assigns. This Agreement and the rights and obligations
herein may not be assigned by any Investor (except to an Affiliate of such
Investor or for estate planning purposes of such Investor) without the prior
written consent of the Company. Except as otherwise expressly 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.
7.3. Entire Agreement. The Transaction Documents and the agreements,
exhibits and schedules referred to herein and therein constitute the entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
7.4. Notices. Except as may be otherwise provided herein, all notices,
requests, waivers and other communications made pursuant to this Agreement shall
be in writing and shall be delivered to the other party (a) in person; (b) by
facsimile to the address and number set forth below, when promptly followed up
by another of the delivery methods permitted by this Section 8.5; (c) by U.S.
mail, registered or certified, return receipt requested, postage prepaid and
addressed to the other party as set forth below; or (d) by a national-recognized
overnight delivery service that keeps records of deliveries and attempted
deliveries (such as FedEx), postage prepaid, addressed to the parties as set
forth below with next-business-day delivery guaranteed, provided that the
sending party receives a confirmation of delivery from the delivery service
provider.
To Investors: To the Company:
James J. Kim Amkor Technology, Inc.
915 Mount Pleasant Road 1900 South Price Road
Bryn Mawr, Pennsylvania 19010 Chandler, Arizona 85248
Fax Number: (610) 525-3080 Attn: Chief Financial Officer
Fax Number: (480) 821-2616
The James and Agnes Kim Foundation,
Inc.
c/o James J. Kim
-12-
915 Mount Pleasant Road
Bryn Mawr, Pennsylvania 19010
Fax Number: (610) 525-3080
Trust U/D of James J. Kim dated
12/24/92 f/b/o
Alexandra Kim Panichello
c/o James J. Kim
915 Mount Pleasant Road
Bryn Mawr, Pennsylvania 19010
Fax Number: (610) 525-3080
Trust U/D of James J. Kim dated
10/3/94 f/b/o
Jacqueline Mary Panichello
c/o James J. Kim
915 Mount Pleasant Road
Bryn Mawr, Pennsylvania 19010
Fax Number: (610) 525-3080
Trust U/D of James J. Kim dated
10/15/01 f/b/o
Dylan James Panichello
c/o James J. Kim
915 Mount Pleasant Road
Bryn Mawr, Pennsylvania 19010
Fax Number: (610) 525-3080
Trust U/D of James J. Kim dated
10/15/01 f/b/o
Allyson Lee Kim
c/o James J. Kim
915 Mount Pleasant Road
Bryn Mawr, Pennsylvania 19010
Fax Number: (610) 525-3080
Trust U/D of James J. Kim dated
11/17/03 f/b/o
Jason Lee Kim
c/o James J. Kim
915 Mount Pleasant Road
Bryn Mawr, Pennsylvania 19010
Fax Number: (610) 525-3080
Trust U/D of James J. Kim dated
11/11/05 f/b/o
Children of David D. Kim
c/o James J. Kim
915 Mount Pleasant Road
-13-
Bryn Mawr, Pennsylvania 19010
Fax Number: (610) 525-3080
with copies to: with copies to:
Amkor Technologies, Inc. Wilson Sonsini Goodrich & Rosati, P.C.
Attention: Kenneth Joyce 650 Page Mill Road
1900 South Price Road Palo Alto, California 94304
Chandler, Arizona 85248 Attn: Robert A. Claassen
Fax Number: (480) 821-2616 Fax Number: (650) 493-6811
Klehr Harrison Harvey Branzburg &
Ellers LLP
2605 Broad Street
Philadelphia, Pennsylvania 19102
Attn: Leonard M. Klehr
Fax Number: (215) 568-6603
A party may change or supplement the addresses given above, or designate
additional addresses, for purposes of this Section 7.4 by giving the other party
written notice of the new address in the manner set forth above.
7.5. Amendments. Any term of this Agreement may be amended only with the
prior written consent of the Company and Investors.
7.6. Delays or Omissions. No delay or omission to exercise any right, power
or remedy accruing to the Company or to Investors, upon any breach or default of
any party hereto under this Agreement, shall impair any such right, power or
remedy of the Company or Investors, nor shall it be construed to be a waiver of
any such breach or default, or an acquiescence therein, or of any similar breach
or default thereafter occurring. Any waiver, permit, consent or approval of any
kind or character on the part of the Company or Investors of any breach or
default under this Agreement or any waiver on the part of the Company or
Investors 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 the Company or Investors shall be cumulative and not alternative.
7.7. Legal Fees. In the event of any action at law, suit in equity or
arbitration proceeding in relation to this Agreement or any units or securities
of the Company issued or to be issued, the prevailing party shall be paid by the
other party a reasonable sum for attorney's fees and expenses for such
prevailing party.
7.8. Titles and Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
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7.9. Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original, but both of which together shall constitute one
instrument.
7.10. Severability. Should any provision of this Agreement be determined to
be illegal or unenforceable, such determination shall not affect the remaining
provisions of this Agreement.
7.11. Dispute Resolution. The parties agree to negotiate in good faith to
resolve any dispute between them regarding this Agreement. If the negotiations
do not resolve the dispute to the reasonable satisfaction of both parties, then
each party shall nominate one senior officer of the rank of Vice President or
higher as its representative. These representatives shall, within thirty (30)
days of a written request by either party to call such a meeting, meet in person
and alone (except for one assistant for each party) and shall attempt in good
faith to resolve the dispute. If the disputes cannot be resolved by such senior
managers in such meeting, the parties agree that they shall, if requested in
writing by either party, meet within thirty (30) days after such written
notification for one day with an impartial mediator and consider dispute
resolution alternatives other than litigation. If an alternative method of
dispute resolution is not agreed upon within thirty (30) days after the one day
mediation, either party may proceed as they see fit. This procedure shall be a
prerequisite before taking any additional action hereunder.
7.12. No Third Parties Benefited. This Agreement is made and entered into
for the protection and benefit of the parties hereto and their permitted
successors and assigns, and, except as expressly provided herein, no other
Person shall be a direct or indirect beneficiary of or have any direct or
indirect cause of action or claim in connection with this Agreement or any of
the documents executed in connection herewith.
7.13. Meaning of Include and Including. Whenever in this Agreement the word
"include" or "including" is used. it shall be deemed to mean "include, without
limitation" or "including, without limitation," as the case may be, and the
language following "include" or "including" shall not be deemed to set forth an
exhaustive list.
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IN WITNESS WHEREOF, the parties have executed this Note Purchase Agreement
as of the date first written above.
AMKOR TECHNOLOGY, INC.
By: /s/ Kenneth Joyce
------------------------------------
Name: Kenneth Joyce
Title: Exec. VP and CFO
INVESTOR:
/s/ James J. Kim
- ----------------------------------------
James J. Kim
{Signature Page to Note Purchase Agreement}
INVESTOR:
/s/ Agnes C. Kim
- ----------------------------------------
The James and Agnes Kim Foundation, Inc.
By: Agnes C. Kim
Title: President
INVESTOR:
/s/ John T. Kim
- ----------------------------------------
Trust U/D of James J. Kim dated 12/24/92
f/b/o Alexandra Kim Panichello
By: John T. Kim
Title: Trustee
INVESTOR:
/s/ John T. Kim
- ----------------------------------------
Trust U/D of James J. Kim dated 10/3/94
f/b/o Jacqueline Mary Panichello
By: John T. Kim
Title: Trustee
INVESTOR:
/s/ John T. Kim
- ----------------------------------------
Trust U/D of James J. Kim dated 10/15/01
f/b/o Dylan James Panichello
By: John T. Kim
Title: Trustee
INVESTOR:
/s/ John T. Kim
- ----------------------------------------
Trust U/D of James J. Kim dated 10/15/01
f/b/o Allyson Lee Kim
By: John T. Kim
Title: Trustee
INVESTOR:
/s/ John T. Kim
- ----------------------------------------
Trust U/D of James J. Kim dated 11/17/03
f/b/o Jason Lee Kim
By: John T. Kim
Title: Trustee
INVESTOR:
/s/ John T. Kim
- ----------------------------------------
Trust U/D of James J. Kim dated 11/11/05
f/b/o Children of David D. Kim
By: John T. Kim
Title: Trustee
SCHEDULE I
LIST OF INVESTORS
Name Principal Amount of Notes Purchase Price
- ---- ------------------------- --------------
James J. Kim $35,000,000 $35,000,000
The James and Agnes Kim Foundation, Inc. $ 5,000,000 $ 5,000,000
Trust U/D of James J. Kim dated 12/24/92 $10,000,000 $10,000,000
f/b/o Alexandra Kim Panichello
John T. Kim, as Trustee
Trust U/D of James J. Kim dated 10/3/94
f/b/o Jacqueline Mary Panichello $10,000,000 $10,000,000
John T. Kim, as Trustee
Trust U/D of James J. Kim dated 10/15/01 $10,000,000 $10,000,000
f/b/o Dylan James Panichello
John T. Kim, as Trustee
Trust U/D of James J. Kim dated 10/15/01 $10,000,000 $10,000,000
f/b/o Allyson Lee Kim
John T. Kim, as Trustee
Trust U/D of James J. Kim dated 11/17/03 $10,000,000 $10,000,000
f/b/o Jason Lee Kim
John T. Kim, as Trustee
Trust U/D of James J. Kim dated 11/11/05 $10,000,000 $10,000,000
f/b/o Children of David D. Kim
John T. Kim, as Trustee
EXHIBIT A
FORM OF WILSON SONSINI GOODRICH & ROSATI, P.C. LEGAL OPINION
1. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of Delaware.
2. Each of the Note Purchase Agreement, Indenture and the Investors Rights
Agreement has been duly authorized, executed and delivered by, and is a valid
and binding agreement of, the Company, enforceable against the Company in
accordance with its terms.
3. The Notes have been duly authorized by the Company and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Investors in accordance with the terms of the
Note Purchase Agreement, will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to
customary exceptions of such counsel.
4. The shares of Common Stock initially issuable upon conversion of the
Notes (the "Conversion Shares") have been duly authorized and reserved and, when
issued upon conversion of the Notes in accordance with the terms of the Notes
and the Indenture, will be validly issued, fully paid and non-assessable.
5. The issuance and sale of the Notes being delivered on the date hereof,
the issuance of the Conversion Shares, if any (assuming conversion on the date
hereof pursuant to the terms of the Notes and the Indenture) and the execution,
delivery and performance of the Indenture, the Notes, the Note Purchase
Agreement, and the Registration Rights Agreement, and the consummation of the
transactions therein contemplated, do not conflict with or did not result in a
breach or violation by the Company of any of the terms or provisions of, or
constitute a default under, any Reviewed Agreement, nor will such action result
in any violation of the provisions of the certificate of incorporation or the
bylaws of the Company or any U.S. federal or California state statute, rule or
order or regulation known to such counsel of any U.S. federal or California or
Delaware (under the DGCL) state court or governmental agency or body having
jurisdiction over the Company or any of its properties. For purposes of this
opinion, "Reviewed Agreement" shall mean those agreements currently in effect
that would be filed by the Company as an Exhibit to the Company's Annual Report
on Form 10-K as if such Report was filed on the date of such opinion.
6. No consent, approval, authorization, order of, registration or
qualification of or with any U.S. federal or California or Delaware (under the
DGCL) state court or governmental agency or body is required for the issue and
sale of the Notes or the execution, delivery of and consummation by the Company
of the transactions contemplated by the Note Purchase Agreement, the
Registration Rights Agreement or the Indenture, except (i) the registration
under the Securities Act of 1933, as amended (the "Act") of the Notes and the
shares of Common Stock issuable upon conversion of the Notes as contemplated by
the Registration Rights Agreement and the qualification of the Indenture
under the Trust Indenture Act of 1939 (the "Trust Indenture Act"), and (ii) as
otherwise contemplated by the Transaction Documents.
7. Assuming accuracy of the representations and warranties of the Company
and the Investors in the Note Purchase Agreement, no registration of the Notes
under the Securities Act is required for the sale of the Notes by the Company to
the Investors pursuant to the Note Purchase Agreement in the manner contemplated
by the Note Purchase Agreement (it being understood that no opinion is expressed
as to any subsequent resale of the Notes or the Conversion Shares).
EXHIBIT B
FORM OF INDENTURE