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Exhibit 10.22
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of __________, 1998 between AMKOR TECHNOLOGY, INC., a Delaware
corporation (the "Company"), and Xxxxx Xxxxxx Inc. (the "Borrower") in
consideration of the Master Securities Loan Agreement of even date herewith.
Reference is made to the Securities Loan Agreement of even date herewith (the
"Securities Loan Agreement"), by and among Xxxxx Xxxxxx Inc., and Xxxxx X. Xxx
and Xxxxx X. Xxx (collectively the "Lender"). The Company hereby confirms its
agreement with the Borrower as follows:
1. SHELF REGISTRATION.
(a) The Company shall use its best efforts to cause the
Securities and Exchange Commission (the "Commission") to declare effective as
promptly as practicable (if not declared effective as of the date hereof) the
registration statement on Form S-1 (No. 333- ) (as amended or supplemented
from time to time, the "Shelf Registration Statement") of the Company under the
Securities Act of 1933, as amended (the "1933 Act"), covering, among other
things, the offering and sale by Borrower of shares of common stock of the
Company ("Common Stock") that are Loaned Securities (as defined in the
Securities Loan Agreement) ("Loaned Company Stock"). If the Shelf Registration
Statement has become or becomes effective pursuant to Rule 430A under the 1933
Act, or filing of the prospectus constituting a part thereof (as amended or
supplemented from time to time, the "Prospectus") is otherwise required under
Rule 424(b) under the 1933 Act, the Company will cause the Prospectus, properly
completed, and any supplement thereto to be filed with the Commission pursuant
to the applicable paragraph of Rule 424(b) within the time period prescribed.
2. REGISTRATION PROCEDURES. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Company shall furnish to Borrower, prior to the filing
thereof with the Commission, a copy of each amendment to the Shelf Registration
Statement and each amendment or supplement, if any, to the Prospectus (and of
each report or other document incorporated therein by reference) and shall use
its best efforts to reflect in each such document, when so filed with the
Commission, such changes thereto as Borrower reasonably may propose.
(b) Notwithstanding any other provision hereof, the Company
shall take such action as may be necessary so that (i) the Shelf Registration
Statement, and any amendment thereto, and any Prospectus, and any amendment or
supplement thereto (and each report or other document incorporated therein by
reference in each case) complies in all material respects with the 1933 Act and
the Securities Exchange Act of 1934, as amended (the "1934 Act") and the
respective rules and
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regulations thereunder, (ii) the Shelf Registration Statement, and any amendment
thereto, does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any
Prospectus, and any amendment or supplement to such Prospectus, does not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company
shall not be responsible for the correctness of any information contained in the
Shelf Registration Statement or the Prospectus or any amendment or supplement
thereto provided to the Company in writing by Borrower specifically for
inclusion therein.
(c) The Company shall promptly advise Borrower, and, if
requested by Borrower, confirm such advice in writing:
(i) when any amendment to the Shelf Registration
Statement has been filed with the Commission and when the Shelf
Registration Statement or any amendment thereto has become effective;
(ii) of any request by the Commission for amendments
or supplements to the Shelf Registration Statement, the Prospectus, or
each report or other document incorporated by reference therein, or for
additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Shelf Registration Statement
or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Loaned Company Stock for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event as a result of
which the Prospectus would include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(d) The Company shall not take any action to withdraw the
Shelf Registration Statement without the prior written consent of Borrower. The
Company will make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Shelf Registration Statement or any
suspension of qualification of the Loaned Company Stock in any jurisdiction at
the earliest possible time.
(e) The Company will furnish to Borrower, without charge, at
least one copy of the Shelf Registration Statement and any amendment thereto,
any report or document incorporated by reference therein, including financial
statements and schedules, and, if Borrower so requests in writing, all exhibits
thereto (including those incorporated by reference).
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(f) The Company will deliver to Borrower, without charge, as
many copies of the Prospectus and any amendment or supplement thereto as
Borrower may reasonably request; and will consent to the use of the Prospectus
or any amendment or supplement thereto by Borrower in connection with the
offering and sale of the Loaned Company Stock.
(g) The Company will register or qualify or cooperate with
Borrower in connection with the registration or qualification of the Loaned
Company Stock for offer and sale under the securities or blue sky laws of such
jurisdictions as Borrower reasonably requests in writing and do any and all
other acts or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Loaned Company Stock; provided, however, that the Company
will not be required to qualify generally to do business in any jurisdiction
where it is not then so qualified or to take any action which would subject it
to general service of process or to taxation in any such jurisdiction where it
is not then so subject.
(h) Upon the occurrence of any event described in Section
2(c)(v) above, the Company will promptly prepare and file with the Commission a
post-effective amendment to the Shelf Registration Statement or an amendment or
supplement to the Prospectus forming a part thereof or any document or report
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to purchasers of the
Loaned Company Stock, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company
may delay the preparation and filing of any such amendment or supplement (i) to
the extent required by applicable law (in which event the Company shall promptly
notify the Borrower in writing of such requirement of applicable law) or (ii)
for a period not exceeding 28 calendar days (or such longer period as agreed to
in writing by Borrower) from the date of occurrence of such event if such
amendment or supplement would disclose a material financing, acquisition or
other corporate development with respect to the Company and the chief executive
officer or chief financial officer of the Company shall have determined in good
faith (and shall have notified the Borrower in writing of such determination)
that such disclosure is not in the best interest of the Company.
(i) The Company shall instruct Borrower in writing to
immediately suspend its use of the Prospectus if (i) the Commission has issued a
stop order suspending the effectiveness of the Shelf Registration Statement,
(ii) an event contemplated by Section 2(c)(v) above has occurred or (iii) the
Board of Directors of the Company, on the advice of its counsel, reasonably
concludes that it is inadvisable as a matter of the federal securities laws that
the Prospectus continue to be used. Such an instruction shall be given by
facsimile transmission, with receipt confirmed telephonically. Such an
instruction shall be deemed received (A) if receipt by each required recipient
is telephonically confirmed between the hours of 7:30 a.m. and 4:30 p.m. on any
Business Day, two hours after the last such confirmation is obtained or (B)
otherwise, upon the next opening of business of the Nasdaq National Market
following the time the last such confirmation is made.
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(j) Promptly upon the Company satisfying the eligibility
criteria for use of a Form S-3 under the 1933 Act, the Company will file a
post-effective amendment to the Shelf Registration Statement to convert it from
a Form S-1 to a Form S-3 registration statement.
3. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify, contribute to and hold
harmless Borrower and each person, if any, who controls Borrower within the
meaning of Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim,
damage, expense and judgment whatsoever ("Loss") arising out of any
untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement (or any amendment thereto
or any information document or report incorporated by reference
therein), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus
(or any amendment or supplement thereto or any information document or
report incorporated by reference therein) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(2) against any and all loss, to the extent of the
aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(3) against any and all expense whatsoever,
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (1) or (2) above;
provided, however, that the provisions of this
Section 3 shall not apply to any Loss to the extent arising out of 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 by
Borrower expressly for use in the Shelf Registration Statement (or amendment
thereto) or the Prospectus.
(b) The Company agrees to indemnify and hold harmless Borrower
against any and all Loss, following receipt by Borrower of a written instruction
from the Company to cease using the Prospectus, to the extent such Loss arises
out of Borrower's inability to deliver Loaned Company Stock upon settlement of
trades entered into prior to receipt by Borrower of such instruction. The
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Company shall not be required under this Section 3(b) to indemnify Borrower for
any Loss to the extent such Loss arises out of (1) Borrower's inability to
deliver Loaned Company Stock upon settlement of trades entered into after
receipt by Borrower of such instruction, (2) the bad faith or gross negligence
of Borrower or (3) Borrower's failure to take reasonable steps to mitigate its
Loss.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to the Company of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify the
Company shall not relieve the Company from any liability which it may have
otherwise under this Section 3. The Company may participate at its own expense
in the defense of any such action.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity provided for in Sections 3(a), (b) and (c)
above is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and Borrower shall
contribute to the aggregate Losses of the nature contemplated by said indemnity
agreement incurred by the Company and Borrower, in such proportions as is
appropriate to reflect the relative fault of the Company, on the one hand, and
Borrower, on the other hand, in connection with the statements or omissions that
resulted in such Losses, determined by reference to whether any alleged untrue
statement or omission related to information provided by the Company, on the one
hand, or Borrower, on the other hand; provided, however, that no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 3(d), each
person, if any, who controls Borrower within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as Borrower.
4. OBLIGATIONS OF THE COMPANY.
(a) The Company from time to time (but not more than once per
calendar quarter), upon receipt of a written request from Borrower therefor,
shall furnish or cause to be furnished to Borrower:
(1) The opinions of legal counsel for the Company, in
form and substance reasonably satisfactory to Borrower, substantially
in the form set forth in Sections 7(b), 7(c), 7(d) and 7(e) of the U.S.
Underwriting Agreement dated , 1998 (the "Underwriting
Agreement") among Xxxxx Xxxxxx Inc., BancAmerica Xxxxxxxxx Xxxxxxxx,
Xxxxx & Company and the Company;
(2) A certificate of the Company, signed by the
Chairman of the Board or the President and the principal financial or
accounting officer of the Company, to the effect that (i) from the date
of the most recent financial information contained in the Prospectus
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company or its subsidiaries, considered as one
enterprise, and (ii) no stop order suspending the effectiveness of the
Shelf
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Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission; and
(3) A letter from the independent public accountants
of the Company, in form and substance satisfactory to Borrower, to the
same effect as set forth in Section 7(j) of the Underwriting Agreement.
5. REGISTRATION EXPENSES. The Company will bear all expenses incurred
in connection with the performance of its obligations under this Agreement.
6. TERMINATION. This Agreement and the obligations of the parties
hereunder shall terminate upon the termination of the Securities Loan Agreement,
except for any liabilities and obligations pursuant to Sections 3 and 5 hereof.
7. MISCELLANEOUS.
(a) The Company has not entered into, nor will the Company on
or after the date of this Agreement enter into, any agreement which is
inconsistent with the rights granted to Borrower in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to Borrower hereunder
do not in any way conflict with the rights granted to the holders of the
Company's other issued and outstanding securities under any such agreements.
(b) The provisions of this Agreement, including the provisions
of this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of Borrower.
(c) Any request, demand, authorization, notice, waiver,
consent, report or communication to a party hereunder shall, unless this
Agreement specifically provides otherwise, be in writing and delivered in person
or mailed by first-class mail, postage prepaid, addressed as follows or
transmitted by facsimile transmission to the following facsimile numbers (or to
such address or facsimile number as such party may designate by the notice):
if to the Company:
Amkor Technology, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
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if to Borrower:
Xxxxx Xxxxxx Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.:
Telephone No.:
with copies in the case of any notice, advice or instruction
under Section 2 to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
and to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Any request, demand, authorization, notice, waiver, consent,
report or communication hereunder shall be deemed given when actually received,
except that any request, demand, authorization, notice waiver, consent, report
or communication actually received on a day that is not a Business Day or after
business hours on a Business Day shall be deemed given and received on the next
succeeding Business Day.
(d) This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) This Agreement shall be governed and construed in
accordance with the internal laws of the State of New York.
(g) In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMKOR TECHNOLOGY, INC.
By: _____________________________________
Name:
Title:
Confirmed and accepted as of the date first above written:
XXXXX XXXXXX INC.
By: _______________________________
Name:
Title:
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