EXHIBIT 1.2
AMKOR TECHNOLOGY INC.
$190,000,000
2.50% Convertible Senior Subordinated Notes Due ▇▇▇▇
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
May 11, 2006
Citigroup Global Markets Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Amkor Technology Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to sell to you (the "Underwriter" or the
"Representative") $190,000,000 principal amount of its 2.50% Convertible Senior
Subordinated Notes Due 2011 (the "Firm Notes"), to be issued under an indenture
(the "Indenture") dated as of May 26, 2006, between the Company and U.S. Bank
National Association, as trustee (the "Trustee"). In addition, the Company
proposes to grant the Underwriter an option to purchase up to an additional
$28,500,000 principal amount of such Notes to cover over-allotments, if any (the
"Option Notes" and together with the Firm Notes, the "Securities"). The
Securities will be convertible into shares (the "Conversion Shares") of common
stock, par value $0.001 per share, of the Company (the "Common Stock") at an
initial price contained in Schedule I hereto (the "Conversion Price"). This
Agreement, the Indenture and the Securities are collectively the "Transaction
Documents." Any reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in
Section 19 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission an automatic shelf
registration statement, as defined in Rule 405 (file number 333-133953) on
Form S-3, including a related Base Prospectus, for registration under the
Act of the offering and sale of the Securities and the Conversion Shares.
Such Registration Statement, including any amendments thereto filed prior
to the Execution Time, became effective upon filing. The Company may have
filed with the Commission, as part of an amendment to the Registration
Statement or pursuant to Rule 424(b), one or more preliminary prospectus
supplements relating to the Securities, each of which has previously been
furnished to you. The Company will file with the Commission a final
prospectus supplement relating to the Securities in accordance with Rule
424(b). As filed, such final prospectus supplement shall contain all
information required by the Act and the rules thereunder, and, except to
the extent the Representative shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the Base Prospectus and any Preliminary
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did, and when
the Final Prospectus is first filed in accordance with Rule 424(b) and on
the Closing Date (as defined herein), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on each Effective Date
and at the Execution Time, the Registration Statement did not and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; on the Effective Date the form of
Indenture did, and on the Closing Date the Indenture will, comply in all
material respects with the applicable requirements of the Trust Indenture
Act and the rules thereunder; and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Final Prospectus (together with
any supplement thereto) will not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of the Underwriter through the Representative
specifically for inclusion in the
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Registration Statement or the Final Prospectus (or any supplement
thereto), it being understood and agreed that the only such information
furnished by or on behalf of the Underwriter consists of the information
described as such in Section 8 hereof.
(c) (i) The Disclosure Package and the final term sheet prepared and
filed pursuant to Section 5(b) hereto, when taken together as a whole and
(ii) each electronic roadshow when taken together as a whole with the
Disclosure Package and the final term sheet prepared and filed pursuant to
Section 5(b) hereto, do not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Disclosure Package based upon and in
conformity with written information furnished to the Company by the
Underwriter through the Representative specifically for use therein, it
being understood and agreed that the only such information furnished by or
on behalf of the Underwriter consists of the information described as such
in Section 8 hereof.
(d) (i) At the time of filing the Registration Statement, (ii) at
the time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Sections
13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time
the Company or any person acting on its behalf (within the meaning, for
this clause only, of Rule 163(c)) made any offer relating to the
Securities in reliance on the exemption in Rule 163, and (iv) at the
Execution Time (with such date being used as the determination date for
purposes of this clause (iv)), the Company was or is (as the case may be)
a Well-Known Seasoned Issuer. The Company agrees to pay the fees required
by the Commission relating to the Securities within the time required by
Rule 456(b)(1) without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r).
(e) At the earliest time after the filing of the Registration
Statement that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2)) of the Securities, the
Company was not and is not an Ineligible Issuer (as defined in Rule 405),
without taking account of any determination by the Commission pursuant to
Rule 405 that it is not necessary that the Company be considered an
Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus and the final term sheet
prepared and filed pursuant to Section 5(b) hereto does not include any
information that conflicts with the information contained in the
Registration Statement, including any document incorporated therein and
any prospectus supplement deemed to be a part thereof that has not been
superseded or modified. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus based
upon and in conformity with written
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information furnished to the Company by the Underwriter through the
Representative specifically for use therein, it being understood and
agreed that the only such information furnished by or on behalf of the
Underwriter consists of the information described as such in Section 8
hereof.
(g) The Company and each of its Subsidiaries (as defined below),
have been duly incorporated or organized and are validly existing as
corporations, limited liability companies or partnerships, as the case may
be, in good standing under the laws of their respective jurisdictions of
incorporation or organization, have all power and authority necessary to
own or hold their respective properties and to conduct the businesses in
which they are engaged, and are duly qualified to do business and are in
good standing as foreign corporations, limited liability companies or
partnerships, as the case may be, in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, except where the
failure to so qualify could not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), results of operations, business or
prospects of the Company and its Subsidiaries taken as a whole (a
"Material Adverse Effect"), and no proceeding has been instituted in any
such jurisdiction, revoking, limiting or curtailing, or seeking to revoke,
limit or curtail, such power and authority or qualification, except such
proceedings which, if successful, could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect. The
Company owns at least 50% of the outstanding capital stock or partnership
interests (in each case measured by voting power or economic interest),
directly or indirectly, of only the corporations, associations,
partnerships or other entities listed on Schedule IV hereto (each a
"Subsidiary" and, collectively, the "Subsidiaries") of which Guardian
Assets, Inc., Amkor International Holdings, P-Four, Amkor Worldwide
Services, Unitive, Inc. and Unitive Electronics, Inc. are the only
subsidiaries of the Company that are incorporated or organized under the
laws of any state of the United States (Guardian Assets, Inc., Amkor
International Holdings, P-Four, Amkor Worldwide Services, Unitive, Inc.
and Unitive Electronics, Inc., each a "U.S. Subsidiary" and collectively
the "U.S. Subsidiaries.").
(h) The Company's authorized equity capitalization is as set forth
in the Disclosure Package and the Final Prospectus; the capital stock of
the Company conforms in all material respects to the description thereof
contained in the Disclosure Package and the Final Prospectus; the
outstanding shares of Common Stock have been duly and validly authorized
and issued and are fully paid and nonassessable; the Conversion Shares
have been duly and validly authorized and reserved for issuance upon
conversion of the Securities by all necessary corporate action of the
Company, and, upon conversion of the Securities in accordance with the
terms of the Indenture, will be validly issued, fully paid and
nonassessable, and will be duly listed, and admitted and authorized for
trading, subject to official notice of issuance, on the Nasdaq National
Market;
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the holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to subscribe for the Conversion
Shares; and, except as set forth in the Disclosure Package and the Final
Prospectus, no options, warrants or other rights to purchase, agreements
or other obligations to issue, or rights to convert any obligations into
or exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding.
(i) All the outstanding shares of capital stock of each Subsidiary
have been duly authorized and validly issued, are fully paid and
nonassessable and, except for directors' or similar qualifying shares and
except that the Company owns, directly or indirectly, 96.2% of the capital
stock of Amkor Technology Taiwan Ltd. and 99.86% of the capital stock of
Unitive Semiconductor Taiwan Corp., are owned by the Company directly or
indirectly through one or more wholly owned Subsidiaries free and clear of
any claim, lien, encumbrance, security interest, restriction upon voting
or transfer or any other claim of any third party.
(j) The Company has full right, power and authority to execute and
deliver this Agreement, the Indenture and the Securities and to perform
its respective obligations hereunder and thereunder (including issuing the
Conversion Shares upon conversion of the Securities); all corporate action
required to be taken by the Company for the due and proper authorization,
execution and delivery of each of the Transaction Documents, and the
consummation of the transactions contemplated hereby and thereby have been
duly and validly taken.
(k) The Indenture, when duly executed by the proper officers of the
Company and delivered by the Company, assuming due authorization,
execution and delivery thereof by the Trustee, will constitute a valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing. The
Disclosure Package and Final Prospectus contain a fair summary of the
principal terms of the Indenture. On the Closing Date, the Indenture will
conform in all material respects to the requirements of the Trust
Indenture Act and the rules and regulations applicable to an indenture
which is qualified thereunder.
(l) The Securities, when duly executed, authenticated, issued and
delivered as provided in the Indenture, and upon payment and delivery in
accordance with this Agreement, will be duly and validly issued and
outstanding and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture applicable thereto and
enforceable in accordance with their terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or
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affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing and will be convertible in
accordance with their terms. The Disclosure Package and Final Prospectus
contain a fair summary of the principal terms of the Securities.
(m) This Agreement has been duly authorized, validly executed and
delivered by the Company.
(n) There is no franchise, lease, contract, agreement or document
required by the Act to be described in the Disclosure Package and the
Final Prospectus, or documents identified therein, or to be filed as an
exhibit thereto, which is not described or filed therein as required; and
all descriptions of any such franchises, leases, contracts, agreements or
documents contained in the documents identified in the Disclosure Package
and Final Prospectus under the heading "Where You Can Find More
Information" (the "Incorporated Documents") and/or the Disclosure Package
and Final Prospectus, to the extent such franchises, leases, contracts,
agreements or documents are described therein, are accurate and complete
descriptions of such documents in all material respects.
(o) Neither the Company nor any of its Subsidiaries is or, after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Disclosure Package
and the Final Prospectus, will become, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, and the rules
and regulations of the Commission thereunder.
(p) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required for the execution,
delivery and performance of the Transaction Documents by the Company and
the consummation of the transactions contemplated thereby, including the
issuance of the Conversion Shares, except such as have been obtained under
the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriter in the manner contemplated herein and in the
Disclosure Package and Final Prospectus.
(q) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to register shares of the Common Stock under the Registration
Statement other than as set forth in the Disclosure Package and the Final
Prospectus.
(r) None of the issuance and sale of the Securities by the Company,
the issuance of the Conversion Shares upon exercise of the Securities, the
performance of the Company's obligations under the Transaction Documents
or the fulfillment of the terms hereof or thereof will conflict with,
result in a breach or violation of, or constitute a default under, or
result in the imposition of any
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lien, charge or encumbrance upon any property or assets of the Company or
any of its Subsidiaries pursuant to, (i) the charter or by-laws of the
Company or any of its Subsidiaries, (ii) the terms or provisions of any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or
by which the Company or any of its Subsidiaries is bound or to which any
of the property or assets of the Company or any of its Subsidiaries is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its Subsidiaries of any court
or governmental agency or body having jurisdiction over the Company or any
of its Subsidiaries or any of their properties or assets, except, in the
case of clauses (ii) and (iii) only, any conflicts, breaches or violations
which, individually or in the aggregate, would not be reasonably expected
to have a Material Adverse Effect.
(s) Except as disclosed in the Disclosure Package and Final
Prospective, no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its Subsidiaries or its or their property or assets is
pending or, to the best of the Company's knowledge, threatened that could
reasonably be expected to have, individually or in the aggregate, a
material adverse effect on the Company's performance of its obligations
under the Transaction Documents or the consummation of any of the
transactions contemplated hereby or thereby or a Material Adverse Effect.
(t) The Company and each of its Subsidiaries owns or leases all such
properties as are necessary to the conduct of its operations as presently
conducted, in each case free and clear of all liens, encumbrances, claims
and defects that would be reasonably expected to result in a Material
Adverse Effect.
(u) Neither the Company nor any of its Subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any respect,
and no event has occurred and is continuing which, with notice or lapse of
time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which it is a party or by which it is bound or to which any of its
property or assets is subject, (iii) is in violation in any respect of any
statute, law, rule, regulation, judgment order or decree of any court,
governmental body, arbitrator or other authority having jurisdiction over
the Company, any such Subsidiary or any of their respective properties or
assets, or (iv) is in non-compliance with any term or condition of, or has
failed to obtain and maintain in effect, any license, certificate,
authorization or permit required for the ownership or lease of its
property or the conduct of its business, except, in the case of clauses
(ii), (iii) and (iv), any violations, defaults, non-compliance or failures
which, individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect.
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(v) PricewaterhouseCoopers LLP ("PWC"), who has expressed its
opinion on the audited consolidated financial statements of the Company
and related schedules included or incorporated by reference in the
Preliminary Prospectus, the Final Prospectus and the Registration
Statement is an independent registered public accounting firm with respect
to the Company and its Subsidiaries as required by the Act.
(w) The historical consolidated financial statements of the Company
and its Subsidiaries included or incorporated by reference in the
Preliminary Prospectus, the Prospectus and the Registration Statement
present fairly in all material respects the financial condition, results
of operations and cash flows of the Company and its Subsidiaries, on a
consolidated basis, as of the dates and for the periods indicated, comply
as to form with the accounting requirements of the Act and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise noted therein). The summary financial data set forth under the
caption "Summary Financial Information" in the Preliminary Prospectus and
the Final Prospectus fairly present, on the basis stated in the
Preliminary Prospectus and the Final Prospectus, the information included
therein. The other financial and statistical information and data included
or incorporated by reference in the Disclosure Package and the Final
Prospectus are, in all material respects, fairly presented.
(x) To the best of the Company's knowledge, there are no transfer
taxes or other similar fees or charges under Federal law or the laws of
any state, or any political subdivision thereof, required to be paid in
connection with the execution and delivery of this Agreement or the
issuance or sale by the Company of the Securities and Conversion Shares.
(y) Neither the Company nor any of its Subsidiaries has been or is
in violation of any federal or state or foreign law or regulation relating
to occupational safety and health or to the storage, handling or
transportation of hazardous or toxic materials, and the Company and its
Subsidiaries have received all permits, licenses or other approvals
required of them under applicable federal and state and foreign
occupational safety and health and environmental laws and regulations to
conduct their respective businesses, and the Company and each of its
Subsidiaries is in compliance with all terms and conditions of any such
permit, license or approval, except any such violation of law or
regulation, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals which could reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect.
(z) The Company and its Subsidiaries each (i) have filed all
federal, state, local and foreign income and franchise tax returns that
are required to be filed or have requested extensions thereof (except in
any case in which the failure
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so to file would not have a Material Adverse Effect), (ii) have paid all
federal, state, local and foreign taxes shown as payable on such returns,
to the extent that any of the foregoing is due and payable, except for any
such tax that is currently being contested in good faith or as would not
have a Material Adverse Effect, and (iii) do not have any tax deficiency
or claims outstanding or assessed or, to the best of the Company's
knowledge, proposed against it which could reasonably be expected to have
a Material Adverse Effect.
(aa) No labor dispute with the employees of the Company or any of
its Subsidiaries exists or, to the best of the Company's knowledge, is
threatened, that could reasonably be expected to have a Material Adverse
Effect.
(bb) The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent for the businesses in which they
are engaged; and neither the Company nor any such Subsidiary has any
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a
cost that would not have a Material Adverse Effect, except as described in
or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto).
(cc) No Subsidiary (excluding Amkor Iwate Company, Ltd., (K.K.)) is
currently prohibited, directly or indirectly, from paying any dividends to
the Company, from making any other distribution on such Subsidiary's
capital stock, from repaying to the Company any loans or advances to such
Subsidiary from the Company or from transferring any of such Subsidiary's
property or assets to the Company or any other Subsidiary, except as
described in or contemplated by the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto) or as otherwise permitted
in the Indenture.
(dd) The Company and each of its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(ee) The Company and the Company's directors and officers, in their
capacities as such, are in compliance in all material respects with the
currently effective and currently applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in
connection therewith (the "Sarbanes
9
Oxley Act"), including Section 402 related to loans and Sections 302 and
906 related to certifications.
(ff) The Company and each of its Subsidiaries owns or has obtained
licenses for the patents, patent applications, trade and service marks,
trade secrets and other intellectual properties referenced or described in
the Disclosure Package and Final Prospectus as being owned by or licensed
to them (collectively, the "Intellectual Property") and (i) to the best of
the Company's knowledge, there are no rights of third parties to any such
Intellectual Property owned by the Company or any of its Subsidiaries;
(ii) to the best of the Company's knowledge, there is no material
infringement by third parties of any such Intellectual Property; (iii)
there is no pending or, to the best of the Company's knowledge, threatened
action, suit, proceeding or claim by others challenging the rights of the
Company or any of its Subsidiaries in or to any such Intellectual
Property, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (iv) there is no pending or, to the
best of the Company's knowledge, threatened action, suit, proceeding or
claim by others challenging the validity or scope of any such Intellectual
Property; (v) there is no pending or, to the best of the Company's
knowledge, threatened action, suit, proceeding or claim by others that the
Company or any of its Subsidiaries infringes or otherwise violates any
patent, trademark, copyright, trade secret or other proprietary rights of
others; (vi) to the best of the Company's knowledge, there is no U.S.
patent or published U.S. patent application which contains claims that
dominate or may dominate any Intellectual Property described in the
Disclosure Package and the Final Prospectus as being owned by or licensed
to the Company or any of its Subsidiaries that interferes with the issued
or pending claims of any such Intellectual Property; and (vii) there is no
prior art of which the Company is aware that may render any U.S. patent
held by the Company or any of its Subsidiaries invalid or any U.S. patent
application held by the Company or any of its Subsidiaries unpatentable
which has not been disclosed to the U.S. Patent and Trademark Office, in
each case of clauses (i) through (vii) that could reasonably be expected
to result in a Material Adverse Effect. Each of the Company and its
Subsidiaries owns or could obtain the Intellectual Property or has the
rights to the Intellectual Property that is necessary to conduct the
Company's business as described in the Disclosure Package and the Final
Prospectus.
(gg) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange Act.
(hh) Neither the Company nor its affiliated purchasers, as defined
in Rule 100 of Regulation M under the Exchange Act ("Regulation M"),
either alone or with one or more other persons, (i) has taken, either
directly or indirectly, any action which was designed to cause or result
in, stabilization or manipulation of the price of any security of the
Company ("Subject Securities") in connection with the offering of the
Securities or (ii) will bid for or purchase any Subject Securities of the
Company or any other covered securities (within the meaning of
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Regulation M) relating to the Subject Securities (together with the
Subject Securities, "Covered Securities"), or attempt to induce any person
to bid for or purchase any Covered Securities, in either case, for the
purpose of creating actual or apparent active trading in, or raising the
price of the Securities.
(ii) There are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business) or
guarantees of indebtedness by the Company or any of its Subsidiaries to or
for the benefit of any of the officers or directors of the Company or any
of its Subsidiaries or any of the members of the families of any of them,
which loans, advances or guarantees are required to be, and are not,
disclosed in the Disclosure Package and the Final Prospectus.
(jj) There have not been, and there are not proposed, (i) any
transactions or agreements between the Company or any of its Subsidiaries
on the one hand and the officers, directors or stockholders of the Company
or any of its Subsidiaries on the other hand, or (ii) any transactions or
agreements between the Company on the one hand and any of its Subsidiaries
on the other hand, or among any of the Company's Subsidiaries, which
transactions or agreements are required to be, and are not, disclosed in
the Disclosure Package and the Final Prospectus.
(kk) No officer or director of the Company is in breach or violation
of any employment agreement, non-competition agreement, confidentiality
agreement or other agreement restricting the nature or scope of employment
to which such officer or director is a party, other than such breaches or
violations which could not reasonably be expected to, individually or in
the aggregate, have a Material Adverse Effect.
(ll) Neither the Company nor any of its Subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree; and, since such date,
there has not been any change in the capital stock or long-term debt of
the Company or any of its Subsidiaries or any development which could
reasonably be expected to have a Material Adverse Effect, otherwise than
as set forth or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto).
(mm) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")) or "accumulated funding deficiency" (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of
11
ERISA has been waived) has occurred with respect to any employee benefit
plan which could reasonably be expected to have a Material Adverse Effect;
each employee benefit plan is in compliance in all material respects with
applicable law, including ERISA and the Code; the Company has not incurred
and does not expect to incur liability under Title IV of ERISA with
respect to the termination of, or withdrawal from, any "pension plan"; and
each "pension plan"(as defined in ERISA) for which the Company would have
any liability that is intended to be qualified under Section 401(a) of the
Code is so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which could cause the loss of such
qualification.
(nn) The minute books of the Company and each of its Subsidiaries
have been made available to the Representative and counsel for the
Underwriter, and such books contain a fair summary of all meetings and
actions of the directors and stockholders of the Company and each of its
Subsidiaries since the time of its respective incorporation through the
date of the latest meeting and action.
(oo) On and immediately after the Closing Date (as defined below),
the Company (after giving effect to the issuance of the Securities and to
the other transactions related thereto as described in the Disclosure
Package and the Final Prospectus) will be Solvent. As used in this
paragraph, the term "Solvent" means, with respect to a particular date,
that on such date (i) the present fair market value (or present fair
saleable value) of the assets of the Company is not less than the total
amount required to pay the probable liabilities of the Company on its
total existing debts and liabilities (including contingent liabilities) as
they become absolute and matured, (ii) the Company is able to realize upon
its assets and pay its debts and other liabilities, contingent obligations
and commitments as they mature and become due in the normal course of
business, (iii) assuming the sale of the Securities as contemplated by
this Agreement and the Disclosure Package and the Final Prospectus, the
Company is not incurring debts or liabilities beyond its ability to pay as
such debts and liabilities mature and (iv) the Company is not engaged in
any business or transaction, and is not about to engage in any business or
transaction, for which its property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in the
industry in which the Company is engaged. In computing the amount of such
contingent liabilities at any time, it is intended that such liabilities
will be computed at the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
(pp) Neither the Company nor any of its Subsidiaries own any "margin
securities" as that term is defined in Regulations of the Board of
Governors of the Federal Reserve System (the "Federal Reserve Board"), and
none of the proceeds of the sale of the Securities will be used, directly
or indirectly, for the purpose of purchasing or carrying any margin
security, for the purpose of reducing or retiring any indebtedness which
was originally incurred to purchase or carry any margin security or for
any other purpose which might cause any of the Securities to be
12
considered a "purpose credit" within the meanings of Regulation T, U or X
of the Federal Reserve Board.
(qq) Neither the Company nor any of its Subsidiaries is a party to
any contract, agreement or understanding with any person that would give
rise to a valid claim against the Company or the Underwriter for a
brokerage commission, finder's fee or like payment in connection with the
offering and sale of the Securities.
(rr) No forward-looking statement (within the meaning of Section 27A
of the Act and Section 21E of the Exchange Act) contained in the
Disclosure Package and the Final Prospectus has been made for which the
Company's management did not have a reasonable basis.
(ss) Neither the Company nor any of its Subsidiaries nor, to the
best of the Company's knowledge, any employee or agent of the Company of
any of its Subsidiaries, has made any contribution or other payment to any
official of, or candidate for, any federal, state or foreign office in
violation of any law which could reasonably be expected to have a Material
Adverse Effect.
(tt) The operations of the Company and its Subsidiaries are and have
been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the
"Money Laundering Laws") and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Company,
threatened.
(uu) Neither the Company nor any of its Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department ("OFAC"); and the Company will not
directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(vv) Except as disclosed in the Disclosure Package and the Final
Prospectus, the Company (i) does not have any material lending or other
relationship with any bank or lending affiliate of the Underwriter and
(ii) does not intend to use any of the proceeds from the sale of the
Securities hereunder to
13
repay any outstanding debt owed to any affiliate of the Underwriter
(provided no representation is made with respect to notes that may be
purchased in the concurrent tender offer described in the Disclosure
Package and Final Prospectus).
Any certificate signed by any officer of the Company and delivered
to the Representative or counsel for the Underwriter in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to the Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to
sell to the Underwriter, and the Underwriter agrees to purchase from the
Company, at the purchase price set forth in Schedule I hereto the
principal amount of the Securities set forth opposite the Underwriter's
name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants
an option to the Underwriter to purchase up to $28,500,000 aggregate
principal amount of Option Notes at the same percentage of the principal
amount thereof as the Underwriter shall pay for the Firm Notes, plus
accrued interest, in any, from May 26, 2006 to the settlement date (the
"settlement date") for the Option Notes. Said option may be exercised only
to cover over-allotments in the sale of the Firm Notes by the Underwriter.
Said option may be exercised in whole or in part at any time and from time
to time on or before the 30th day after the date of the Final Prospectus
upon written or electronic notice by the Representative to the Company
setting forth the principal amount of Option Notes as to which the
Underwriter is exercising the option and the settlement date.
3. Delivery and Payment. Delivery of and payment for the Firm Notes
and the Option Notes (if the option provided for in Section 2(b) hereof shall
have been exercised on or before the third Business Day prior to the Closing
Date) shall be made at 10:00 AM, New York City time, on the date set forth in
Schedule I hereto, or at such time on such later date not more than three
Business Days after the foregoing date as the Representative shall designate,
which date and time may be postponed by agreement between the Representative and
the Company (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made to
the Representative for the account of the Underwriter against payment by the
Underwriter of the purchase price thereof to or upon the order of the Company by
wire transfer payable in same-day funds to an account specified by the Company.
Delivery of the Securities shall be made through the facilities of The
Depository Trust Company unless the Representative shall otherwise instruct.
14
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Notes (at the expense of the Company) to the Representative, at such
location and on such date specified by the Representative (which shall be within
three Business Days after exercise of said option) for the account of the
Underwriter, against payment by the Underwriter of the purchase price thereof to
or upon the order of the Company by wire transfer payable in same-day funds to
an account specified by the Company. If settlement for the Option Notes occurs
after the Closing Date, the Company will deliver to the Representative on the
settlement date for the Option Notes, and the obligation of the Underwriter to
purchase the Option Notes shall be conditioned upon receipt of, supplemental
opinions, certificates and letters confirming as of such date the opinions,
certificates and letters delivered on the Closing Date pursuant to Section 6
hereof.
4. Offering by Underwriter. It is understood that the Underwriter
proposes to offer the Securities for sale to the public as set forth in the
Final Prospectus.
5. Agreements. The Company agrees with the Underwriter that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Prospectus)
to the Base Prospectus unless the Company has furnished you a copy for
your review prior to filing and will not file any such proposed amendment
or supplement to which you reasonably object. The Company will cause the
Final Prospectus, properly completed, and any supplement thereto to be
filed in a form reasonably approved by the Representative with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representative of such timely filing. During the time when the Final
Prospectus relating to the Securities is required to be delivered under
the Act (including in circumstances where such requirement may be
satisfied pursuant to Rule 172), the Company will promptly advise the
Representative (i) when the Final Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule
424(b), (ii) when, prior to termination of the offering of the Securities,
any amendment to the Registration Statement shall have been filed or
become effective, (iii) of any request by the Commission or its staff for
any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Final Prospectus or
for any additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or of any notice objecting to its use or the institution or threatening of
any proceeding for that purpose and (v) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop order or the
occurrence of any such suspension or objection to the use of the
Registration Statement and, upon such issuance, occurrence or notice of
15
objection, to obtain as soon as possible the withdrawal of such stop order
or relief from such occurrence or objection, including, if necessary, by
filing an amendment to the Registration Statement or a new registration
statement and using its reasonable best efforts if applicable to have such
amendment or new registration statement declared effective as soon as
practicable.
(b) It will prepare a final term sheet, containing solely a
description of the pricing terms applicable to the Securities and
information derived therefrom, in a form approved by you and to file such
term sheet pursuant to Rule 433(d) within the time required by such Rule.
(c) If, at any time prior to the filing of a final prospectus
pursuant to Rule 424(b), any event occurs as a result of which the
Disclosure Package 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 at
such time not misleading, the Company will (i) notify promptly the
Representative so that any use of the Disclosure Package may cease until
it is amended or supplemented; (ii) amend or supplement the Disclosure
Package to correct such statement or omission; and (iii) supply any
amendment or supplement to you in such quantities as you may reasonably
request.
(d) If, at any time when the Final Prospectus relating to the
Securities is required to be delivered under the Act (including in
circumstances where such requirement may be satisfied pursuant to Rule
172), any event occurs as a result of which the Final Prospectus as then
supplemented 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 at such time not
misleading, or if it shall be necessary to amend the Registration
Statement, file a new registration statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, including in connection with use or delivery of the
Final Prospectus, the Company promptly will (i) notify the Representative
of such event, (ii) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 5, an amendment or
supplement or new registration statement which will correct such statement
or omission or effect such compliance, (iii) if applicable, use its
reasonable best efforts to have any amendment to the Registration
Statement or new registration statement declared effective as soon as
practicable in order to avoid any disruption in use of the Final
Prospectus and (iv) supply any supplemented Final Prospectus to you in
such quantities as you may reasonably request.
(e) As soon as practicable, the Company will make generally
available to its security holders and to the Representative an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158.
16
(f) If requested by the Representative, the Company will furnish to
the Representative and counsel for the Underwriter, without charge, signed
copies of the Registration Statement (including exhibits thereto) and to
each other Underwriter a copy of the Registration Statement (without
exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act (including in
circumstances where such requirement may be satisfied pursuant to Rule
172), as many copies of each Preliminary Prospectus, the Final Prospectus
and each Issuer Free Writing Prospectus and any supplement thereto as the
Representative may reasonably request. The Company will pay the expenses
of printing or other production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of
the Securities and Conversion Shares for sale under the laws of such
jurisdictions as the Representative may reasonably designate, will
maintain such qualifications in effect so long as required for the
distribution of the Securities and will pay any fee of the National
Association of Securities Dealers, Inc. in connection with its review of
the offering; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale of
the Securities, in any jurisdiction where it is not now so subject.
(h) The Company agrees that, unless it has obtained or will obtain
the prior written consent of the Representative, and the Underwriter
agrees with the Company that, unless it has obtained or will obtain, as
the case may be, the prior written consent of the Company, it has not made
and will not make any offer relating to the Securities that would
constitute an Issuer Free Writing Prospectus or that would otherwise
constitute a "free writing prospectus" (as defined in Rule 405) required
to be filed by the Company with the Commission or retained by the Company
under Rule 433, other than the information contained in the final term
sheet prepared and filed pursuant to Section 5(b) hereto; provided that
the prior written consent of the parties hereto shall be deemed to have
been given in respect of the Free Writing Prospectuses included in
Schedule II hereto. Any such free writing prospectus consented to by the
Representative or the Company is hereinafter referred to as a "Permitted
Free Writing Prospectus." The Company agrees that (x) it has treated and
will treat, as the case may be, each Permitted Free Writing Prospectus as
an Issuer Free Writing Prospectus and (y) it has complied and will comply,
as the case may be, with the requirements of Rules 164 and 433 applicable
to any Permitted Free Writing Prospectus, including in respect of timely
filing with the Commission, legending and record keeping.
(i) During a period of 90 days from the date of the Final
Prospectus, the Company will not, without the prior written consent of
Citigroup Global Markets Inc., (i) directly or indirectly, offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant for the
sale of, or otherwise dispose of or transfer any
17
share of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file, or cause to be filed, any
registration statement or prospectus under the 1933 Act with respect to
any of the foregoing or (ii) enter into any swap or any other agreement or
any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise; provided, however, that (i) the Company may issue and
sell Common Stock pursuant to any employee stock option plan, stock
ownership plan or dividend reinvestment plan of the Company in effect at
the Execution Time and (ii) the Company may issue Common Stock issuable
upon the conversion of the Securities or the exercise of warrants
outstanding at the Execution Time.
(j) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(k) Prior to the Closing Date, the Company will not issue any press
release or other public communication directly or indirectly or hold any
press conference with respect to the Company, its condition, financial or
otherwise, or earnings, business affairs or business prospects (except for
routine oral marketing communications in the ordinary course of business
and consistent with the past practices of the Company and of which the
Representative is notified), without consultation with the Representative,
unless in the judgment of the Company and its counsel, and after
notification to the Representative, such press release or public
communication is required by law.
(l) The Company will apply the net proceeds from the sale of the
Securities as set forth in the Disclosure Package and the Prospectus under
the heading "Use of Proceeds".
(m) In connection with the offering of the Securities, until the
earlier to occur of (i) the date the Representative shall have notified
the Company of the completion of the resale of the Securities or (ii) 30
days following the Closing Date, the Company will make its officers,
employees, independent accountants and legal counsel reasonably available
upon request by the Representative.
(n) The Company will not take any action prior to the execution and
delivery of the Indenture which, if taken after such execution and
delivery, would have violated any of the covenants contained in the
Indenture.
18
(o) The Company will reserve and keep available at all times free of
pre-emptive rights, the full number of Conversion Shares issuable upon
conversion of the Securities.
(p) Between the date hereof and the later of the Closing Date and
any settlement date relating to Option Notes, the Company will not do or
authorize anything that would result in an adjustment of the Conversion
Price.
(q) The Company will use all reasonable efforts to effect the
designation or listing subject to notice of issuance, of the Conversion
Shares issuable upon such conversion on the Nasdaq National Market or on
such market or exchange on which the Common Stock is then quoted or
listed.
(r) The Company agrees with the Representative to pay (a) the costs
incident to the authorization, issuance, sale, preparation and delivery of
the Securities to the Underwriter or pursuant to the sale of the
Securities to the public as set forth in the Disclosure Package and Final
Prospectus, and for the issuance of the Conversion Shares, and any
transfer or other taxes payable in that connection; (b) the costs incident
to the preparation, printing and distribution of any Preliminary
Prospectus and the Final Prospectus and any amendments and exhibits
thereto, the costs of printing, reproducing and distributing the
Transaction Documents and applicable related documents by mail, telex or
other means of communications; (c) any applicable listing or other fees;
(d) any fee of the National Association of Securities Dealers, Inc. in
connection with its review of the offering; (e) all fees and expenses of
the Trustees or any agent thereof; (f) any fees charged by securities
rating services for rating the Securities; and (g) all other costs and
expenses incident to the performance of the obligations of the Company
under this Agreement (including, without limitation, the fees and expenses
of the Company's counsel and the Company's independent accountants);
provided that, except as otherwise provided in this paragraph and in
Section 7, the Underwriter shall pay its own costs and expenses, including
the fees and expenses of its counsel.
6. Conditions to the Obligations of the Underwriter. The obligation
of the Underwriter to purchase the Securities shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time and the Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been
filed in the manner and within the time period required by Rule 424(b);
the final term sheet contemplated by Section 5(b) hereto, and any other
material required to be filed by the Company pursuant to Rule 433(d) under
the Act, shall have been filed with the Commission within the applicable
time periods prescribed for such filings by Rule 433; and no stop order
suspending the effectiveness of the
19
Registration Statement or any notice objecting to its use shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) All corporate proceedings and other legal matters incident to
the authorization, form and validity of each of each of the Transaction
Documents, the Prospectus and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Underwriter, and
the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon
such matters.
(c) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C., counsel for the Company, to have furnished to the
Representative their opinion, dated the Closing Date and addressed to the
Representative, to the effect set forth in Annex A-1.
(d) ▇▇▇▇▇ ▇▇▇▇▇▇▇, Assistant General Counsel of the Company, shall
have furnished to the Representative such counsel's written opinion, as
counsel to the Company, addressed to the Representative and dated the
Closing Date, in form and substance reasonably satisfactory to the
Representative, to the effect that:
(i) except to the extent set forth in the Disclosure Package
and the Final Prospectus, and except for directors' shares which are
not material in amount, all the outstanding shares of capital stock
of each Subsidiary are owned by the Company directly or indirectly
through one or more wholly owned Subsidiaries, free and clear of any
claim, lien, encumbrance, security interest, restriction upon voting
or transfer or any other claim of any third party; and
(ii) to the best of such counsel's knowledge, except as set
forth in the Disclosure Package and the Final Prospectus, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding.
In rendering such opinion, such counsel may rely as to matters
involving the application of laws of any jurisdiction other than the
United States or the corporate laws of the State of Delaware, to the
extent he deems proper and specifies in such opinion, upon the opinion of
other counsel of good standing whom he believes to be reliable and who are
satisfactory to counsel for the Underwriter. Such opinion may also contain
customary qualifications and limitations. References to the Disclosure
Package and the Final Prospectus in this paragraph (d) include any
amendments or supplements thereto at the Closing Date.
20
(e) ▇▇▇▇▇▇, Del Castillo, Bacorro, ▇▇▇▇▇▇, Calma & ▇▇▇▇▇▇▇▇▇ Law
Offices, Philippines counsel for the Company, shall have furnished to the
Representative such counsel's written opinion, as counsel to the Company,
addressed to the Representative and dated the Closing Date, in form and
substance reasonably satisfactory to the Representative, to the effect
that:
(i) each of the Subsidiaries incorporated or organized under
the laws of the Philippines (the "Philippines Subsidiaries") has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the Philippines, with full corporate
power and authority to own or hold its properties and to conduct the
businesses in which it is engaged; and
(ii) all the outstanding shares of capital stock of each
Philippines Subsidiary have been duly authorized and validly issued,
are fully paid and non assessable and, except such shares of each
Philippines Subsidiary owned by directors thereof, which shares in
each case do not exceed 0.1% of the outstanding shares of such
Subsidiary, are owned by the Company directly or indirectly through
one or more wholly owned Subsidiaries, free and clear of any claim,
lien, encumbrance, security interest, restriction upon voting or
transfer or any other claim of any third party.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper on certificates of responsible
officers of the Company and public officials. Such opinion may also
contain customary qualifications and limitations.
(f) ▇▇▇ & ▇▇▇▇▇, Korean Counsel for the Company, shall have
furnished to the Representative such counsel's written opinion, as counsel
to the Company, addressed to the Representative and dated the Closing
Date, in form and substance reasonably satisfactory to the Representative,
to the effect that:
(i) such of the Subsidiaries incorporated or organized under
the laws of the Republic of Korea (the "Korean Subsidiaries") has
been duly incorporated and is validly existing as corporations under
the laws of the Republic of Korea, with full corporate power and
authority to own or hold its properties and to conduct its
businesses in accordance with its Articles of Incorporation; and
(ii) all the outstanding shares of capital stock of each
Korean Subsidiary have been duly authorized and validly issued, are
fully paid and nonassessable, and, in the case of each Korean
Subsidiary, are owned by the Company directly or indirectly through
one or more wholly owned subsidiaries, free and clear of any claim,
lien, encumbrance, security
21
interest, restriction upon voting or transfer or any other claim of
any third party.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of each Korean Subsidiary and the Company and public officials.
Such opinion may also contain customary qualifications and limitations.
(g) The Representative shall have received from Weil, Gotshal &
▇▇▇▇▇▇ LLP, counsel for the Underwriter, such opinion or opinions, dated
the Closing Date and addressed to the Representative, with respect to the
issuance and sale of the Securities, the Indenture, the Registration
Statement, the Disclosure Package, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representative may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(h) The Company shall have requested and caused
PricewaterhouseCoopers LLP to have furnished to the Representative, at the
Execution Time and at the Closing Date, a letter, in form and substance
satisfactory to the Underwriter (i) confirming that they are the
independent certified public accountants with respect to the Company and
its Subsidiaries within the meaning of the Act and the Exchange Act and
(ii) stating the conclusions and findings of such firm with respect to
financial statements and certain financial information included or
incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Final Prospectus, the form of which is set forth in
Annex B hereto.
(i) The Company shall have furnished to the Representative 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, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Final
Prospectus, the Disclosure Package and any amendment or supplement thereto
and this Agreement and that(1):
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with
the same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing
Date;
----------
(1) This certificate or a separate certificate will cover compliance with debt
covenants in Company's indentures.
22
(ii) no stop order suspending the effectiveness of the
Registration Statement or any notice that would prevent its use has
been issued and no proceedings for that purpose have been instituted
or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto), there has been no development
which could reasonably be expected to have a material adverse effect
on the condition (financial or otherwise), results of operations,
business or prospects of the Company and its subsidiaries, taken as
a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement
thereto).
(j) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph (e) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), results of operations,
business or properties of the Company and its subsidiaries taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any supplement thereto) the effect
of which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Representative, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof), the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto).
(k) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance
or sale of the Securities; and no injunction, restraining order or order
of any other nature by any federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would
prevent the issuance or sale of the Securities.
(l) Subsequent to the Execution Time, there shall not have been any
downgrading in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) and no such organization shall have
publicly announced that it has under surveillance or review (other than an
announcement
23
with positive implications of a possible upgrading in its rating of any of
the Company's debt securities).
(m) The Indenture shall have been duly executed and delivered by the
Company and the Trustee, and the Securities shall have been duly executed
and delivered by the Company and duly authenticated by the Trustee.
(n) The concurrent offering of senior notes described in the Final
Prospectus shall have closed.
(o) Each of the Chief Executive Officer, ▇▇▇▇ ▇. ▇▇▇ and ▇▇▇▇▇ ▇▇▇
shall have furnished a letter, dated as of the date hereof, substantially
in the form of Exhibit A hereto.
(p) Prior to the Closing Date, the Company shall have furnished to
the Underwriter such further information, certificates and documents as
the Underwriter may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representative and counsel
for the Underwriter, this Agreement and all obligations of the Underwriter
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representative. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
7. Reimbursement of Underwriter's Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriter set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by the Underwriter, the Company will reimburse the Underwriter on demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been reasonably incurred by the Underwriter in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Underwriter, the directors, officers, employees and agents of the
Underwriter and each person who controls the Underwriter within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of
them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
24
untrue statement of a material fact contained in the registration
statement for the registration of the Securities as originally filed or in
any amendment thereof, or in the Base Prospectus, any Preliminary
Prospectus or any other preliminary prospectus supplement relating to the
Securities, the Final Prospectus, any Issuer Free Writing Prospectus or
the information contained in the final term sheet required to be prepared
and filed pursuant to Section 5(b) hereto, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or
on behalf of the Underwriter through the Representative specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to the Underwriter, but only with
reference to written information relating to the Underwriter furnished to
the Company by or on behalf of the Underwriter through the Representative
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability
which the Underwriter may otherwise have. The Company acknowledges that
the statements set forth in the last paragraph of the cover page regarding
delivery of the Securities and, under the heading "Underwriting" or "Plan
of Distribution", (i) the sentences related to concessions and
reallowances and (iii) the paragraph related to stabilization, syndicate
covering transactions in any Preliminary Prospectus and the Final
Prospectus constitute the only information furnished in writing by the
Underwriter for inclusion in any Preliminary Prospectus or the Final
Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any
25
event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel reasonably shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in
an action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall bear
the reasonable fees, costs and expenses of such separate counsel if (i)
the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party it being
understood, however, that the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for all
such indemnified parties, which firm shall be designated in writing by
Citigroup Global Markets Inc., if the indemnified parties under this
Section consist of the Underwriter indemnified party, or by the Company if
the indemnified parties under this Section consist of any Company
indemnified parties. Each indemnified party, as a condition of the
indemnity agreements contained in paragraphs (a) and (b) of this Section,
shall use all reasonable efforts to cooperate with the indemnifying party
in the defense of any such action or claim. No indemnifying party shall be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with its written consent or if there be a final judgment for the plaintiff
in any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing, if
an indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential
26
parties to such claim or action), such settlement, compromise or consent
shall include an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a), (b)
or (c) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Underwriter severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which the Company and the Underwriter may be subject in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and by the Underwriter on the other from the
offering of the Securities; provided, however, that in no case shall the
Underwriter be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by the
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriter severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Underwriter on
the other in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total
net proceeds from the offering (before deducting expenses) received by it,
and benefits received by the Underwriter shall be deemed to be equal to
the total underwriting discounts and commissions, in each case as set
forth on the cover page of the Final Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the
Company on the one hand or the Underwriter on the other, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company and the Underwriter agree that it would not be just and equitable
if contribution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d),
no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls the Underwriter
within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of the Underwriter shall have the
same rights to contribution as the Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same
27
rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representative, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the Nasdaq National Market or trading in securities generally
on the New York Stock Exchange or the Nasdaq National Market shall have been
suspended or limited or minimum prices shall have been established on such
Exchange or the Nasdaq National Market, (ii) a banking moratorium shall have
been declared either by Federal or New York State authorities or (iii) there
shall have occurred any outbreak or escalation of hostilities, declaration by
the United States of a national emergency or war, or other calamity or crisis
the effect of which on financial markets is such as to make it, in the sole
judgment of the Representative, impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by any Preliminary
Prospectus or the Final Prospectus (exclusive of any supplement thereto).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriter set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representative, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention:
General Counsel; or, if sent to the Company, will be mailed, delivered or
telefaxed to Amkor Technology Inc. (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it
at Amkor Technology Inc., at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention of the Chief Financial Officer.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
13. No Fiduciary Duty. The Company hereby acknowledges that (a) the
purchase and sale of the Securities pursuant to this Agreement is an
arm's-length commercial transaction between the Company, on the one hand, and
the Underwriter and any affiliate through which it may be acting, on the other,
(b) the Underwriter is acting as principal and not as an agent or fiduciary of
the Company and (c) the Company's
28
engagement of the Underwriter in connection with the offering and the process
leading up to the offering is as independent contractors and not in any other
capacity. Furthermore, the Company agrees that it is solely responsible for
making its own judgments in connection with the offering (irrespective of
whether the Underwriter has advised or is currently advising the Company on
related or other matters). The Company agrees that it will not claim that the
Underwriter has rendered advisory services of any nature or respect, or owes an
agency, fiduciary or similar duty to the Company, in connection with such
transaction or the process leading thereto.
14. Integration. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company and the
Underwriter, or any of them, with respect to the subject matter hereof.
15. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
16. Waiver of Jury Trial. The Company and the Underwriter hereby
irrevocably waive, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby.
17. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
18. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
19. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Base Prospectus" shall mean the base prospectus referred to in
paragraph 1(a) above contained in the Registration Statement at the Execution
Time.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Disclosure Package" shall mean (i) the Base Prospectus, (ii) the
Preliminary Prospectus used most recently prior to the Execution Time, (iii) the
Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto,(iv)
the final term sheet
29
prepared and filed pursuant to Section 5(b) hereto, if any, and (v) any other
Free Writing Prospectus that the parties hereto shall hereafter expressly agree
in writing to treat as part of the Disclosure Package.
"Effective Date" shall mean each date and time that the Registration
Statement and any post-effective amendment or amendments thereto became or
become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Base Prospectus.
"Free Writing Prospectus" shall mean a free writing prospectus, as
defined in Rule 405.
"Issuer Free Writing Prospectus" shall mean an issuer free writing
prospectus, as defined in Rule 433.
"Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the Base Prospectus referred to in paragraph 1(a) above which is
used prior to the filing of the Final Prospectus, together with the Base
Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial statements
and any prospectus supplement relating to the Securities that is filed with the
Commission pursuant to Rule 424(b) and deemed part of such registration
statement pursuant to Rule 430B, as amended on each Effective Date and, in the
event any post-effective amendment thereto becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended.
"Rule 158", "Rule 163", "Rule 164", "Rule 172", "Rule 405", "Rule
415", "Rule 424", "Rule 430B" and "Rule 433" refer to such rules under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Well-Known Seasoned Issuer" shall mean a well-known seasoned
issuer, as defined in Rule 405.
30
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the Underwriter.
Very truly yours,
Amkor Technology Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
31
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
32
SCHEDULE I
Purchase
Underwriter Firm Notes Option Notes Price
----------- ------------ ------------ --------
Citigroup Global Markets Inc. $190,000,000 $28,500,000 97%
Expected Date of Delivery and Payment for Firm Notes: May 26, 2006
Initial Conversion Price: $14.59 per share
33
SCHEDULE II
Pricing Supplement/Term Sheet dated May 11, 2006
34
ISSUER FREE WRITING PROSPECTUS FILED
PURSUANT TO RULE 433 SUPPLEMENTING THE
PRELIMINARY PROSPECTUS SUPPLEMENT DATED
MAY 10, 2006
REGISTRATION NO. 333-133953
MAY 11, 2006
AMKOR TECHNOLOGY, INC.
2.50% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2011
FINAL TERM SHEET
TITLE OF SECURITIES: 2.50% Convertible Senior Subordinated Notes
due 2011
FINAL MATURITY DATE: May 15, 2011
CONVERSION RATE: 68.5589 shares of common stock per $1,000
principal amount of notes, subject to
adjustment
CONVERSION PRICE: $14.59 per share
ANNUAL INTEREST RATE: 2.50%
INTEREST PAYMENT DATES: May 15 and November 15, beginning November
15, 2006
RECORD DATES: May 1 and November 1
PUBLIC OFFERING PRICE: 100%, plus accrued interest, if any, from the
issue date
UNDERWRITING DISCOUNT PER NOTE: 3.0%
AGGREGATE PRINCIPAL AMOUNT: $190.0 million ($218.5 million if the
underwriter's option to purchase additional
notes is exercised in full)
PROCEEDS (BEFORE EXPENSES) TO
AMKOR: $184.3 million ($211.9 million if the
underwriter's option to purchase additional
notes is exercised in full)
MAKE WHOLE PREMIUM UPON A
DESIGNATED EVENT: Payable upon the occurrence of certain
designated events in the form of an increase
in the conversion rate ranging from 0.0000 to
20.5677 depending on the stock price at the
time of the designated event and the
effective date of the designated event.
TRADE DATE: May 12, 2006
SETTLEMENT DATE: May 26, 2006 (T+ 11)
FORM OF OFFERING: SEC Registered (Registration Statement No.
333-133953)
UNDERWRITER: Citigroup Global Markets Inc.
CUSIP: 031652 AX 8
ISIN: US031652AX80
LISTING: None
MAKE WHOLE PREMIUM
The number of additional shares issued pursuant to the Make Whole Premium
will be determined by reference to the following table and is based on the date
on which such designated event becomes effective and the price paid per share of
common stock on the effective date:
EFFECTIVE PRICE
----------------------------------------------------------------------------------------------------
EFFECTIVE DATE $11.22 $12.50 $14.00 $15.50 $17.00 $18.50 $20.00 $25.00 $30.00 $35.00 $40.00
-------------- ------- ------- ------- ------- ------ ------ ------ ------ ------ ------ ------
MAY 25, 2006......... 20.5677 16.6387 13.2168 10.6959 8.8062 7.3665 6.2563 4.0269 3.0022 2.5173 0.0000
MAY 15, 2007......... 20.5677 16.6772 12.9928 10.3023 8.3052 6.8009 5.6554 3.4201 2.4602 2.0514 0.0000
MAY 15, 2008......... 20.5677 16.5738 12.5778 9.6963 7.5875 6.0250 4.8570 2.6771 1.8390 1.5357 0.0000
MAY 15, 2009......... 20.5677 16.1340 11.7595 8.6685 6.4603 4.8700 3.7198 1.7411 1.1402 0.9687 0.0000
MAY 15, 2010......... 20.5677 14.8850 9.9807 6.6640 4.4257 2.9246 1.9277 0.5660 0.3959 0.3394 0.0000
MAY 15, 2011......... 20.5677 11.4411 2.8697 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000
The following information updates and supersedes the information in our
Prospectus Supplement (the "Prospectus Supplement"), Subject to Completion dated
May 10, 2006, To Prospectus Dated May 10, 2006. In addition, the information set
forth below under "Capitalization" supersedes and replaces in its entirety the
information set forth in the Prospectus Supplement under the caption
"Capitalization."
UPDATE ON OFFERING SIZE
We are offering $190.0 million aggregate principal amount (with an
additional $28.5 million should the underwriter's option to purchase additional
notes be fully exercised) of 2.50% Convertible Senior Subordinated Notes due
2011.
USE OF PROCEEDS
We expect to receive net proceeds from this offering of $183.9 million
(excluding the underwriter's option to purchase additional notes), after
deducting the underwriting discounts and commissions and our estimated offering
expenses. We intend to use the net proceeds from the offering to redeem,
repurchase or otherwise retire $176.5 million of our $200.0 million aggregate
principal amount outstanding of our 10.5% senior subordinated notes due 2009
(together with the payment of the related premium, accrued and unpaid interest
to and including the redemption date and related fees and expenses). In the
event the underwriter exercises its option to purchase additional notes in full,
we intend to use the proceeds to redeem, repurchase or otherwise retire the
remaining amount of notes outstanding of our 10.5% senior subordinated notes due
2009, with any remainder (an estimated $3.2 million), to retire other debt or
for general corporate or working capital purposes.
UPDATE ON CONCURRENT OFFERING SIZE AND USE OF PROCEEDS
We are offering $400.0 million aggregate principal amount of our 9.25%
senior notes due 2016 in the concurrent offering. We intend to use the net
proceeds from the concurrent offering to purchase the $349.4 million of 9.25%
senior notes in the tender offer (including the payment of the tender premium,
accrued and unpaid interest, the early tender payment and related fees and
expenses), with the remainder (an estimated $13.1 million) to repurchase
remaining 9.25% senior notes that may be tendered, subject to the cap, to retire
other debt or for general corporate or working capital purposes. As of May 9,
2006, holders of $349.4 million in aggregate principal amount of 9.25% notes
have tendered in the tender offer. We have increased the size of the tender
offer to $360 million.
OUTSTANDING DEBT AND RANKING
As of March 31, 2006, assuming completion of the concurrent transactions,
we would have had approximately $1,464.8 million of senior debt (approximately
$300 million of which would have been secured), $213.5 million of senior
subordinated debt and approximately $378.4 million of subordinated debt.
2
SETTLEMENT CYCLE
We expect that delivery of the notes will be made against payment therefor
on or about May 26, 2006, which will be the 11th business day following the date
of pricing of the notes (such settlement cycle being herein referred to as "T +
11)"). Under Rule 15c6-1 under the Securities Exchange Act of 1934, as amended,
or Exchange Act, trades in the secondary market generally are required to settle
in three business days, unless the parties to any such trade expressly agree
otherwise. Accordingly, purchasers who wish to trade notes on the date of
pricing or the next seven succeeding business days will be required, by virtue
of the fact that the notes initially will settle T + 11, to specify an alternate
settlement cycle at the time of any such trade to prevent a failed settlement.
Purchasers of notes who wish to trade notes on the date of pricing or the next
three succeeding business days should consult their own advisor.
3
CAPITALIZATION
The following table sets forth our cash and cash equivalents and total
capitalization as of March 31, 2006 (1) on a historical basis, and (2) as
adjusted to give effect to the concurrent transactions, as follows:
- the issuance in this offering of $190.0 million of convertible
subordinated notes for net proceeds of $183.9 million and the application
thereof to redeem $176.5 million aggregate principal amount outstanding
of our 10.5% senior subordinated notes, and
- the issuance of $400.0 million of senior notes in the concurrent offering
for net proceeds of $391.8 million and the application thereof to
repurchase $349.4 million aggregate principal amount of our 9.25% notes
in the tender offer.
You should read the as adjusted capitalization data set forth in the table
below in conjunction with "Selected Consolidated Financial Data," "Description
of Certain Indebtedness," and "Management's Discussion and Analysis of Financial
Condition and Results of Operations," set forth in our Annual Report on Form
10-K for the year ended December 31, 2005 and our Quarterly Report on Form 10-Q
for the quarter ended March 31, 2006, and our consolidated financial statements
and the notes thereto, incorporated by reference into the Prospectus Supplement.
AT MARCH 31, 2006
------------------------
ACTUAL AS ADJUSTED
---------- -----------
(IN THOUSANDS)
Cash and cash equivalents................................... $ 226,243 $ 239,392
========== ==========
Long-term debt and short-term borrowings:
Senior secured credit facilities:
Term loan due October 2010............................. $ 300,000 $ 300,000
$100.0 million revolving credit facility due November
2009(1)................................................... -- --
9.25% Senior notes due February 2008...................... 440,500 91,060
7.75% Senior notes due May 2013........................... 425,000 425,000
7.125% Senior notes due March 2011........................ 248,711 248,711
% Senior notes due 2016.............................. -- 400,000
10.50% Senior subordinated notes due May 2009(2).......... 200,000 23,489
% Convertible senior subordinated notes due 2011..... -- 190,000
5.75% Convertible subordinated notes due June 2006........ 132,000 132,000
5.00% Convertible subordinated notes due March 2007....... 146,422 146,422
6.25% Convertible subordinated notes due December 2013.... 100,000 100,000
Other debt................................................ 125,314 125,314
---------- ----------
Total debt................................................ 2,117,947 2,181,996
---------- ----------
Total stockholders' equity(3)............................... 260,398 232,654
---------- ----------
Total capitalization........................................ $2,378,345 $2,414,650
========== ==========
---------------
(1) As of March 31, 2006, we had utilized $2.5 million of the available letter
of credit sub-limit, and had $97.5 million available under this facility.
(2) Pursuant to the terms of the indenture governing these notes, we have the
right to redeem the notes at a price of 101.75% plus accrued and unpaid
interest to and including the redemption date. For purposes of this table,
we have assumed that such notes are redeemed on the 60th day following this
offering at that price. The actual amount of 10.5% senior subordinated notes
repurchased will depend on market conditions and the actual price at which
we may redeem, repurchase or otherwise retire these notes.
4
(3) Total stockholders' equity as of March 31, 2006, as adjusted, reflects an
approximate $27.7 million early debt extinguishment charge consisting of
$23.2 million of prepayment premiums and $4.5 million for the write-off of
unamortized debt issue costs.
The issuer has filed a registration statement (including a prospectus) with
the SEC for the offering to which this communication relates. Before you invest,
you should read the prospectus in that registration statement and other
documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by visiting
▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the issuer, any
underwriter or any dealer participating in the offering will arrange to send you
the prospectus if you request it by calling toll-free ▇-▇▇▇-▇▇▇-▇▇▇▇.
5
SCHEDULE III
AMKOR TECHNOLOGY INC. SUBSIDIARIES
1. Amkor Technology Hong Kong Ltd.
2. Amkor Wafer Fabrication Services, SARL
3. Amkor Worldwide Services LLC
4. Amkor Assembly & Test (Shanghai) Co. Ltd.
5. Guardian Assets, Inc.
6. Amkor Technology Singapore Pte. Ltd.
7. Unitive, Inc.
8. Amkor Iwate Company, Ltd.
9. Amkor Technology Euroservices, SARL
10. Amkor Techology Japan K.K.
11. Amkor International Holdings, LLC
12. Unitive Electronics, Inc.
13. Unitive International Ltd.
14. Amkor Technology Ltd.
15. P-Four LLC
16. Unitive Semiconductor Taiwan
17. Amkor Technology Taiwan Ltd.
18. Semisys Co., Ltd.
19. AT Korea, Inc.
20. Amkor Techology Philippines, Inc.
21. Amkor Technology Greater China, Ltd.
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