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EXHIBIT 1.1
CGS&H DRAFT/ U.S. Version
3/24/98
AMKOR TECHNOLOGY, INC.
28,000,000 Shares*
Common Stock
($.001 par value)
$120,000,000**
___ % Convertible Subordinated Notes Due ▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
April ___, 1998
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ & Company
As U.S. Representatives of the several U.S. Underwriters,
c/o ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Amkor Technology, Inc., a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule I hereto (the "U.S.
Underwriters"), for whom you (the "U.S. Representatives") are acting as
representatives, 24,000,000 shares of common stock, $.001 par value ("Common
Stock"), of the Company, and the persons named in Schedule II hereto (the
"Selling Stockholders") propose to sell to the U.S. Underwriters 4,000,000
shares of Common Stock (said shares to be issued and sold by the Company and
shares to be sold by the Selling Stockholders collectively being hereinafter
called the "U.S. Underwritten Shares"). The Company also proposes to grant to
the U.S. Underwriters an option to purchase up to 4,200,000 additional shares of
Common Stock (the "U.S. Option Shares"; the U.S. Option Shares, together with
the U.S. Underwritten Shares, being hereinafter called the "U.S. Shares"). The
Company
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* Plus an option to purchase from Amkor Technology, Inc. up to 4,200,000
additional shares to cover over-allotments.
** Plus an option to purchase from Amkor Technology, Inc. up to $18,000,000
additional principal amount of its ___% Convertible Subordinated Notes due
2003 to cover over-allotments.
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also proposes to sell to certain of the U.S. Underwriters $120,000,000
principal amount of its ___% Convertible Subordinated Notes due 2003 (the "U.S.
Underwritten Notes"), to be issued under an indenture (the "Indenture") to be
dated as of April __, 1998, between the Company and State Street Bank and Trust
Company, as trustee (the "Trustee"). The Company also proposes to grant to such
U.S. Underwriters an option to purchase up to $18,000,000 additional principal
amount of its ___% Convertible Subordinated Notes due 2003 (the "U.S. Option
Notes"; the U.S. Option Notes, together with the U.S. Underwritten Notes, being
hereinafter called the "U.S. Notes"; and the U.S. Notes, together with the U.S.
Shares, being hereinafter called the "U.S. Securities"). The U.S. Notes are
convertible into shares of Common Stock.
It is understood that the Company and the Selling Stockholders are
concurrently entering into an International Underwriting Agreement dated the
date hereof (the "International Underwriting Agreement") providing for (i) the
sale by the Company and the Selling Stockholders of an aggregate of 7,000,000
shares of Common Stock (said shares to be sold by the Company and the Selling
Stockholders pursuant to the International Underwriting Agreement being
hereinafter called the "International Underwritten Shares"), and providing for
the grant to the underwriters named in Schedule I thereto (the "International
Underwriters") of an option to purchase from the Company up to 1,050,000
additional shares of Common Stock (the "International Option Shares"; the
International Option Shares, together with the International Underwritten
Shares, being hereinafter called the "International Shares"; and the U.S.
Shares, together with the International Shares, being hereinafter called the
"Shares") and (ii) the sale by the Company of $30,000,000 principal amount of
its ___% Convertible Subordinated Notes due 2003 (the "International
Underwritten Notes"), and providing for the grant to certain International
Underwriters of an option to purchase from the Company up to $4,500,000
additional principal amount of its ____% Convertible Subordinated Notes due 2003
(the "International Option Notes"; the International Option Notes, together with
the International Underwritten Notes, being hereinafter called the
"International Notes"; and the International Notes, together with the
International Shares, being hereinafter called the "International Securities";
and the International Notes, together with the U.S. Notes, being hereinafter
called the "Notes"; and the Notes, together with the Shares, being hereinafter
called the "Securities").
It is further understood and agreed that the International
Underwriters and the U.S. Underwriters have entered into an Agreement Between
U.S. Underwriters and International Underwriters dated the date hereof (the
"Agreement Between U.S. Underwriters and International Underwriters"), pursuant
to which, among other things, the International Underwriters may purchase from
the U.S. Underwriters a portion of the U.S. Securities to be sold pursuant to
the U.S. Underwriting Agreement and the U.S. Underwriters may purchase from the
International Underwriters a portion of the International Securities to be sold
pursuant to the International Underwriting Agreement. To the extent there are no
additional U.S. Underwriters listed on Schedule I other than you, the term U.S.
Representatives as used herein shall mean you, as U.S. Underwriters, and the
terms U.S. Representatives and U.S. Underwriters shall mean either the singular
or plural as the context requires.
It is understood by the parties hereto that ▇▇. ▇▇▇▇▇ ▇. ▇▇▇ and
▇▇▇. ▇▇▇▇▇ ▇. ▇▇▇ ("Mr. and ▇▇▇. ▇▇▇▇▇ ▇. ▇▇▇"), Selling Stockholders, are
concurrently entering into a
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securities loan agreement dated the date hereof (the "Securities Loan
Agreement") with ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("SBI") which provides that, subject to
certain restrictions and with the agreement of Mr. and ▇▇▇. ▇▇▇▇▇ ▇. ▇▇▇, SBI
may from time to time borrow, return and reborrow from Mr. and ▇▇▇. ▇▇▇▇▇ ▇. ▇▇▇
certain shares of Common Stock (the "Borrowed Shares") for the purpose of
facilitating market-making activity in the Notes by SBI.
Certain terms used in this Agreement are defined in Section 17
hereof.
1. Representations and Warranties.
A. The Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, a Selling Stockholder,
jointly and severally represent and warrant to, and agree with, each U.S.
Underwriter as set forth below in this Section 1A.
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (file number
333-37235) on Form S-1, including the related Offering Preliminary
Prospectuses, for the registration under the Act of the offering and sale
of the Securities. The Company may have filed one or more amendments
thereto, including the related Offering Preliminary Prospectuses, each of
which has previously been furnished to you. The Company will next file
with the Commission either (i) prior to effectiveness of the Offering
Registration Statement, a further amendment to the Offering Registration
Statement (including the form of Offering Prospectuses) or (ii) after
effectiveness of the Offering Registration Statement, the Offering
Prospectuses in accordance with Rules 430A and 424(b)(1) or (4). In the
case of clause (ii), the Company has included in the Offering Registration
Statement all information (other than Rule 430A Information) required by
the Act and the rules thereunder to be included in the Offering
Registration Statement and the Offering Prospectuses. As filed, such
amendment and form of Offering Prospectuses, or such Offering
Prospectuses, shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the U.S.
Representatives 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 latest Offering U.S. Preliminary Prospectus) as the
Company has advised you, prior to the Execution Time, will be included or
made therein.
It is understood that two forms of prospectus are to be used
in connection with the offering and sale of the Securities: one form of
prospectus relating to the U.S. Securities, which are to be offered and
sold to United States and Canadian Persons, and one form of prospectus
relating to the International Securities, which are to be offered and sold
to persons other than United States and Canadian Persons. The two forms of
prospectus are identical except for the outside front cover page, the
inside front cover page, the discussion under the heading "Underwriting"
and the outside back cover page. Such form of prospectus relating to the
U.S. Securities as first filed pursuant to Rule 424(b) after the Execution
Time or, if no filing pursuant to Rule 424(b) is made,
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such form of prospectus included in the Offering Registration Statement at
the Effective Date, is hereinafter called the "Offering U.S. Prospectus";
such form of prospectus relating to the International Securities as first
filed pursuant to Rule 424(b) after the Execution Time or, if no filing
pursuant to Rule 424(b) is made, such form of prospectus included in the
Offering Registration Statement at the Effective Date, in either case,
exclusive of any supplement thereto, is hereinafter called the "Offering
International Prospectus"; and the Offering U.S. Prospectus and the
Offering International Prospectus are hereinafter collectively called the
"Offering Prospectuses".
(b) On the Effective Date, the Offering Registration Statement
did or will, and when the Offering Prospectuses are first filed (if
required) in accordance with Rule 424(b) and on the Closing Date (as
defined herein) and on any date on which the U.S. Option Shares or U.S.
Option Notes are purchased, if such date is not the Closing Date (a
"settlement date"), each Offering Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable requirements of
the Act and the rules thereunder; on the Effective Date and at the
Execution Time, the Offering Registration Statement did not or 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; and, on the Effective Date, each
Offering Prospectus, if not filed pursuant to Rule 424(b), did not or will
not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date and any settlement date, each Offering 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 and ▇▇.
▇▇▇▇▇ ▇. ▇▇▇ make no representations or warranties as to the information
contained in or omitted from the Offering Registration Statement or the
Offering Prospectuses (or any supplement thereto) in reliance upon and in
conformity with information furnished herein or in writing to the Company
by or on behalf of any U.S. Underwriter through the U.S. Representatives
specifically for inclusion in the Offering Registration Statement or the
Offering Prospectuses (or any supplement thereto).
(c) The Company has filed with the Commission a registration
statement (file number 333-_________) on Form S-1, including the related
Borrowing Preliminary Prospectus, for the registration under the Act of
the offering and sale of the Borrowed Shares. The Company may have filed
one or more amendments thereto, including the related Borrowing
Preliminary Prospectus, each of which has previously been furnished to
you. The Company will next file with the Commission either (i) prior to
the effectiveness of the Borrowing Registration Statement, a further
amendment to the Borrowing Registration Statement (including the form of
Borrowing Prospectus) or (ii) after the effectiveness of the Borrowing
Registration Statement , the Borrowing Prospectus in accordance with Rules
430A and 424(b)(1) or (4). In the case of clause (ii), the Company has
included in the Borrowing Registration Statement all information (other
than Rule 430A Information) required by the Act and the rules thereunder
to be included in the Borrowing Registration Statement and the Borrowing
Prospectus. As filed, such
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amendment and form of Borrowing Prospectus, or such Borrowing Prospectus,
shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the U.S. Representatives
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 latest Borrowing Preliminary Prospectus) as the Company has advised
you, prior to the Execution Time, will be included or made therein.
(d) On the Effective Date, the Borrowing Registration Statement
did or will, and when the Borrowing Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date, the
Borrowing Prospectus (and any supplements thereto) will, comply in all
material respects with the applicable requirements of the Act and the
rules thereunder; on the Borrowing Effective Date and at the Execution
Time, the Borrowing Registration Statement did not or 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; and, on the Borrowing Effective Date, the
Borrowing Prospectus, if not filed pursuant to Rule 424(b), will not, and
on the date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Borrowing Prospectus (together with any supplemental 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 and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇ make no
representations or warranties as to the information contained in or
omitted from the Borrowing Registration Statement, or the Borrowing
Prospectus (or any supplemental thereto) in reliance upon and in
conformity with information furnished herein or in writing to the Company
by or on behalf of any U.S. Underwriter through the U.S. Representatives
specifically for inclusion in the Borrowing Registration Statement or the
Borrowing Prospectus (or any supplement thereto).
(e) The combined financial statements and schedules of the
Company and A.K. Industries, Inc., Amkor Electronics, Inc., Amkor Anam
Test Services, Inc., T.L. Limited, Amkor Anam Advanced Packaging, Inc.
("AAAP"), Amkor/Anam Pilipinas, Inc. ("AAP"), C.I.L. Limited, Amkor/Anam
Euroservices S.A.R.L., and Automated MicroElectronics, Inc. ("AMI") (each
a "Subsidiary" and collectively the "Subsidiaries") included in the
Prospectuses and the Registration Statements present fairly in all
material respects the financial condition, results of operations and cash
flows of the Company and the Subsidiaries, on a combined basis, as of the
dates and for the periods indicated, comply as to form with the applicable
accounting requirements of the Act and the rules and regulations
thereunder 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).
(f) Each of the Company, the Subsidiaries and , to the knowledge
of the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, Anam Industrial Co., Ltd. ("AICL")
has been duly
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incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or organized
with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectuses; each
of the Company and the Subsidiaries is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, except where the failure
to be so qualified would not have 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, would not individually or in the aggregate have a Material
Adverse Effect.
(g) All the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except (i) such shares of AAP owned by AICL,
which shares do not exceed 40.1% of the outstanding voting shares of AAP,
(ii) such shares of AAP, AMI and AAAP owned by directors thereof, which
shares in each case do not exceed 0.1% of the outstanding shares of such
Subsidiary, (iii) 3,446,476 shares of preferred stock of AAP, which shares
are owned by Integrated Microelectronics, Inc., and (iv) as otherwise set
forth in the Prospectuses, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any perfected security interest and
any other security interests, claims, liens or encumbrances.
(h) The Company's authorized equity capitalization is as set
forth in the Prospectuses; the capital stock of the Company conforms in
all material respects to the description thereof contained in the
Prospectuses; the outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and nonassessable; the
U.S. Shares being sold hereunder have been duly and validly authorized,
and, when issued and delivered to and paid for by the U.S. Underwriters
pursuant to this Agreement, will be fully paid and nonassessable; the U.S.
Shares have been duly authorized for listing, subject to official notice
of issuance, on the Nasdaq National Market; the certificates for the U.S.
Shares are in valid and sufficient form; the holders of outstanding shares
of capital stock of the Company are not entitled to preemptive or other
rights to subscribe for the U.S. Shares; and, except as set forth in the
Prospectuses, 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) The Indenture will be, as of the Closing Date, duly
authorized, executed and delivered; the Indenture has been duly qualified
under the Trust Indenture Act and as of the Closing Date will constitute a
valid, binding and enforceable obligation of the Company; the U.S. Notes
have been duly authorized by the Company and, when authenticated by the
Trustee in accordance with the terms of the Indenture and delivered to and
paid for by the U.S. Underwriters pursuant to this Agreement, will have
been duly executed, authenticated, issued and delivered and will
constitute valid, binding and enforceable obligations of the Company
entitled to the benefits provided by the
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Indenture; the shares of Common Stock issuable upon conversion of the U.S.
Notes have been duly authorized for listing, subject to official notice of
issuance, on the Nasdaq National Market; the holders of the outstanding
shares of capital stock of the Company are not entitled to any preemptive
or other rights to subscribe for the U.S. Notes or the shares of Common
Stock issuable upon the conversion thereof; the shares of Common Stock
initially issuable upon conversion of the U.S. Notes have been duly and
validly authorized and reserved for issuance upon such conversion and,
when issued upon conversion, will be validly issued, fully paid and
nonassessable; and the U.S. Notes and the Indenture will conform in all
material respects to the descriptions thereof contained in the Offering
Prospectuses.
(j) There is no franchise, contract or other document of a
character required to be described in the Registration Statements or
Prospectuses, or to be filed as an exhibit thereto, which is not described
or filed as required.
(k) This Agreement has been duly authorized, executed and
delivered by the Company and is a valid, binding and enforceable agreement
of the Company.
(l) The Company is not and, after giving effect to the offering
and sale of the U.S. Securities and the application of the proceeds
thereof as described in the Prospectuses, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended (the
"1940 Act").
(m) No consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection with
the transactions contemplated herein, 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 U.S.
Securities by the U.S. Underwriters in the manner contemplated herein and
in the Prospectuses.
(n) Neither the issue and sale of the U.S. Securities nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, or result in a breach
or violation of or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Subsidiaries pursuant to,
(i) the charter or bylaws of the Company or any of the Subsidiaries or
(ii) the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement to which the Company or
any of the Subsidiaries is a party or bound or to which its or their
property is subject or (iii) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company or any of the Subsidiaries of
any court, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of the Subsidiaries or any of its or
their properties.
(o) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statements.
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(p) 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 the Subsidiaries or its or their property is pending or,
to the knowledge of the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, threatened that (i)
could reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected to
have a Material Adverse Effect, except as set forth in or contemplated in
the Prospectuses.
(q) The Reorganization (as defined in the Prospectuses) has
been completed as described in the Prospectuses.
(r) Each of the Packaging and Test Services Agreement dated as
of November 1, 1997 and the Foundry Services Agreement dated as of January
1, 1998 (collectively, the "AICL Agreements") has been duly authorized,
executed and delivered by the Company, the Subsidiaries that are parties
thereto (the "Subsidiary Parties") and AICL and is a valid, binding and
enforceable agreement of the Company, the Subsidiary Parties and, to the
knowledge of the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, AICL; neither the
consummation of the transactions contemplated in any of the AICL
Agreements nor the fulfillment of the terms thereof will conflict with, or
result in a breach or violation of or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, any of the
Subsidiary Parties or AICL pursuant to, (i) the charter or bylaws of the
Company, any Subsidiary Party or, to the knowledge of the Company and ▇▇.
▇▇▇▇▇ ▇. ▇▇▇, AICL or (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement
to which the Company, any Subsidiary Party or, to the knowledge of the
Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, AICL is a party or bound or to which their
respective property is subject (except for such breaches or violations
which would not, individually or in the aggregate, have a Material Adverse
Effect or a material adverse effect on the ability of AICL to perform any
of the AICL Agreements) or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company, any Subsidiary Party
or, to the knowledge of the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, AICL of any
court, governmental body, arbitrator or other authority having
jurisdiction over the Company, such Subsidiary Party or AICL or any of
their respective properties; no consent, approval, authorization, filing
with or order of any court or governmental agency or body is currently
required in connection with the transactions contemplated in any of the
AICL Agreements, except those of which have been obtained or which, if not
obtained, would not individually or in the aggregate have a material
adverse effect on the performance of any of the AICL Agreements or the
consummation of the transactions contemplated thereby; and no action, suit
or proceeding by or before any court or governmental body or any
arbitrator involving the Company, any Subsidiary Party or, to the
knowledge of the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, AICL or their respective
properties is pending or, to the knowledge of the Company and ▇▇. ▇▇▇▇▇ ▇.
▇▇▇, threatened that could reasonably be expected to have a material
adverse effect on the performance of any of the AICL Agreements or the
consummation of the transactions contemplated thereby.
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(s) Each of the Company, the Subsidiaries and, to the knowledge
of the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, AICL owns or leases all such
properties as are necessary to the conduct of its operations as presently
conducted; neither the Company nor any Subsidiary nor, to the knowledge of
the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, AICL is in violation of any law, rule or
regulation of any Federal, state, local or other governmental or
regulatory authority applicable to it or is in non-compliance with any
term or condition of, or has failed to obtain and maintain in effect, any
license, certificate, permit or other governmental authorization required
for the ownership or lease of its property or the conduct of its business,
which violation, non-compliance or failure would individually or in the
aggregate have a Material Adverse Effect or a material adverse effect on
the ability of AICL to perform any of the AICL Agreements, except as set
forth in or contemplated in the Prospectuses; and the Company has not
received notice of any proceedings relating to the revocation or material
modification of any such license, certificate, permit or other
authorization (other than such proceedings which, if the subject of an
unfavorable decision, would not individually or in the aggregate have a
Material Adverse Effect), except as set forth in or contemplated in the
Prospectuses.
(t) Neither the Company nor any Subsidiary nor, to the knowledge
of the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, AICL is in violation or default of
(i) any provision of its charter or bylaws, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement to which it is a party or bound or to which
its property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree of any court, governmental body, arbitrator or
other authority having jurisdiction over the Company, or such Subsidiary
or AICL or any of their respective properties, as applicable, in each case
(x) other than such violations or defaults which would not, individually
or in the aggregate, have a Material Adverse Effect or a material adverse
effect on the ability of AICL to perform its obligations under the AICL
Agreements and (y) except as set forth in or contemplated in the
Prospectuses.
(u) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified certain financial
statements of the Company and the Subsidiaries and delivered their report
with respect to the audited combined financial statements and schedules
included in the Prospectuses, are independent public accountants with
respect to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder.
(v) 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 by the Company or sale by the Company of
the U.S. Securities.
(w) The Company has filed all foreign, federal, state and local
tax returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not have
a Material Adverse Effect), except as set forth in or contemplated in the
Prospectuses and has paid all taxes shown as payable on such tax returns
and any other assessment, fine or penalty levied against it, to the extent
that
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any of the foregoing is due and payable, except for any such assessment,
fine or penalty that is currently being contested in good faith or as
would not have a Material Adverse Effect, except as set forth in or
contemplated in the Prospectuses.
(x) No labor dispute with the employees of the Company or any of
the Subsidiaries exists or, to the knowledge of the Company and ▇▇. ▇▇▇▇▇
▇. ▇▇▇, is threatened that could reasonably be expected to have a Material
Adverse Effect, except as set forth in or contemplated in the
Prospectuses.
(y) The Company and each of the 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; neither the Company nor any such Subsidiary has been refused
any insurance coverage sought or applied for; 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 set forth in or contemplated in the Prospectuses.
(z) No Subsidiary 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 of the Company, except as described in or
contemplated in the Prospectuses.
(aa) The Company and the Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses (except in any case in which the failure so to possess any such
certificate, authorization or permit would not, individually or in the
aggregate, have a Material Adverse Effect), and neither the Company nor
any such Subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could reasonably be expected to have a
Material Adverse Effect, except as set forth in or contemplated in the
Prospectuses.
(bb) Neither the Company nor any of the Subsidiaries is in
violation of any federal or state 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 the
Subsidiaries have received all permits, licenses or other approvals
required of them under applicable federal and state occupational safety
and health and environmental laws and regulations to conduct their
respective businesses, and the Company and each such Subsidiary 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
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permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals which would not,
singly or in the aggregate, have a Material Adverse Effect, except as set
forth in or contemplated in the Prospectuses.
(cc) The Company and each of the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (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.
(dd) Each of the Company, the Subsidiaries and, to the knowledge
of the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, AICL 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
Prospectuses as being owned by or licensed to it (collectively, the
"Intellectual Property"). Except as set forth in the Prospectuses under
the caption "Business --Intellectual Property," (a) to the knowledge of
the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, there are no rights of third parties to
any such Intellectual Property owned by the Company or any of the
Subsidiaries; (b) to the knowledge of the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇,
there is no material infringement by third parties of any such
Intellectual Property (other than with respect to the "Gold Gate" patent
of the Company); (c) there is no pending or, to the knowledge of the
Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, threatened action, suit, proceeding or claim
by others challenging the rights of the Company, any Subsidiary or AICL 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; (d) there is
no pending or, to the knowledge of the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇,
threatened action, suit, proceeding or claim by others challenging the
validity or scope of any such Intellectual Property; (e) there is no
pending or, to the knowledge of the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇,
threatened action, suit, proceeding or claim by others that the Company,
any Subsidiary or AICL infringes or otherwise violates any patent,
trademark, copyright, trade secret or other proprietary rights of others;
(f) to the knowledge of the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, 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
Prospectuses as being owned by or licensed to the Company, any Subsidiary
or AICL or that interferes with the issued or pending claims of any such
Intellectual Property; and (g) there is no prior art of which the Company
is aware that may render any U.S. patent held by the Company, any
Subsidiary or AICL invalid or any U.S. patent application held by the
Company, any Subsidiary or AICL unpatentable which has not been disclosed
to the U.S. Patent and Trademark Office. Each of the Company, the
Subsidiaries and, to the knowledge of the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇,
AICL owns the Intellectual Property or has the rights to the Intellectual
Property that is necessary, in the case of the Company and the
Subsidiaries, to conduct
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the Company's business as described in the Prospectuses or, in the case of
AICL, to perform its obligations under the AICL Agreements.
(ee) Neither the Company nor any of the Subsidiaries has
distributed nor will it distribute prior to the later of (i) the Closing
Date, or any date on which U.S. Option Shares or U.S. Option Notes are to
be purchased, as the case may be, and (ii) completion of the distribution
of the U.S. Securities, any offering material in connection with the
offering and sale of the U.S. Securities other than any Offering
Preliminary Prospectuses, the Offering Prospectuses, the Offering
Registration Statement and other materials, if any, permitted by the Act.
(ff) Neither the Company nor its affiliated purchasers, as
defined in Rule 100 of Regulation M ("Regulation M") under the Exchange
Act, 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, or which has constituted, or which might reasonably be expected 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 Regulation M) relating to the Subject Securities (together with
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.
(gg) 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 the Subsidiaries to or
for the benefit of any of the officers or directors of the Company or any
Subsidiary 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 Registration Statements and Prospectuses.
(hh) There have not been, and there are not proposed, any
transactions or agreements between the Company or any of the Subsidiaries
on the one hand and the officers, directors or stockholders of the Company
or any of the Subsidiaries on the other, which transactions or agreements
are required to be, and are not, disclosed in the Registration Statements
and Prospectuses.
(ii) 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 would not, individually or in the
aggregate, have a Material Adverse Effect; neither the current conduct nor
the proposed conduct of the Company's business, as described in the
Registration Statements and Prospectuses, will result in a breach or
violation of any such agreement.
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(jj) There are no outstanding options to acquire shares of
capital stock of the Company that are vested and exercisable, and there
are no outstanding options to acquire shares of capital stock of the
Company that can, by their terms, become exercisable within 180 days of
the date hereof.
Any certificate signed by any officer of the Company and delivered
to the U.S. Representatives or counsel for the U.S. Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each U.S.
Underwriter.
B. Each Selling Stockholder represents and warrants to, and agrees
with, each U.S. Underwriter that:
(a) Such Selling Stockholder has full legal right, capacity,
power and authority to enter into and perform this Agreement and the
Custody Agreement (as defined below) and to sell, transfer, assign and
deliver in the manner provided in this Agreement and the Custody Agreement
the U.S. Shares to be sold by such Selling Stockholder hereunder.
(b) Such Selling Stockholder is the lawful owner of the U.S.
Shares to be sold by such Selling Stockholder hereunder and upon sale and
delivery of, and payment for, such U.S. Shares, as provided herein, such
Selling Stockholder will convey good and valid title to such U.S. Shares,
free and clear of all liens, encumbrances, equities and claims whatsoever.
(c) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which has constituted or
which might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the U.S.
Shares and has not effected any sales of shares of Common Stock which, if
effected by the issuer, would be required to be disclosed in response to
Item 701 of Regulation S-K under the Act.
(d) Certificates in negotiable form for such Selling
Stockholder's U.S. Shares have been placed in custody, for delivery
pursuant to the terms of this Agreement, under a Custody Agreement duly
executed and delivered by such Selling Stockholder, in the form heretofore
furnished to you (the "Custody Agreement") with ___________ of
___________, as Custodian (the "Custodian"); the U.S. Shares represented
by the certificates so held in custody for each Selling Stockholder are
subject to the interests hereunder of the U.S. Underwriters, the Company
and the other Selling Stockholders; the arrangements for custody and
delivery of such certificates, made by such Selling Stockholder hereunder
and under the Custody Agreement, are not subject to termination by any
acts of such Selling Stockholder, or by operation of law, whether by the
death or incapacity of such Selling Stockholder or the occurrence of any
other event; and if any such death, incapacity or any other such event
shall occur before the delivery of such U.S.
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Shares hereunder, certificates for the U.S. Shares will be delivered by
the Custodian in accordance with the terms and conditions of this
Agreement and the Custody Agreement as if such death, incapacity or other
event had not occurred, regardless of whether or not the Custodian shall
have received notice of such death, incapacity or other event.
(e) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by such
Selling Stockholder of the transactions contemplated herein, except such
as may 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 U.S. Shares by the U.S. Underwriters and such other
approvals as have been obtained.
(f) Neither the sale of the U.S. Shares being sold by such
Selling Stockholder nor the consummation of any other of the transactions
herein contemplated by such Selling Stockholder or the fulfillment of the
terms hereof by such Selling Stockholder will conflict with, result in a
breach or violation of, or constitute a default under any law or the terms
of any indenture or other agreement or instrument to which such Selling
Stockholder is a party or bound, or any judgment, order or decree
applicable to such Selling Stockholder of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction
over such Selling Stockholder.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
and the Selling Stockholders agree to sell to each U.S. Underwriter, and each
U.S. Underwriter agrees, severally and not jointly, to purchase from the Company
and the Selling Stockholders, at a purchase price of $________ per share, the
amount of the U.S. Underwritten Shares set forth opposite such U.S.
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 several U.S. Underwriters to purchase, severally and not jointly,
up to 4,200,000 shares of the U.S. Option Shares at the same purchase price per
share as the U.S. Underwriters shall pay for the U.S. Underwritten Shares. Said
option may be exercised only to cover over-allotments in the sale of the U.S.
Underwritten Shares by the U.S. Underwriters. Said option may be exercised in
whole or in part at any time (but not more than once) on or before the 30th day
after the date of the Offering U.S. Prospectus upon written or telegraphic
notice by the U.S. Representatives to the Company setting forth the number of
shares of the U.S. Option Shares as to which the several U.S. Underwriters are
exercising the option and the settlement date; provided, however, that to the
extent that both the option provided for in this Section 2(b) and the option
provided for in Section 2(b) of the International Underwriting Agreement are
exercised, (i) such exercises shall occur on the same date and (ii) the
settlement dates in respect thereof shall be the same date. Delivery of the U.S.
Option Shares, and payment therefor, shall be made as provided in Section 3
hereof. The number of shares of the U.S. Option Shares to be purchased by each
U.S. Underwriter shall be the same percentage of the total number of shares of
the U.S. Option Shares to be purchased by the several U.S. Underwriters as such
U.S. Underwriter is purchasing of the
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U.S. Underwritten Shares, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares.
(c) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each U.S. Underwriter, and each U.S. Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of ___% of the
principal amount thereof, plus accrued interest, if any, on the U.S.
Underwritten Notes from April __, 1998, to the Closing Date, the principal
amount of the U.S. Underwritten Notes set forth opposite such U.S.
Underwriter's name in Schedule I hereto.
(d) 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 several U.S. Underwriters to purchase, severally and not jointly,
the U.S. Option Notes at a purchase price of _____% of the principal amount
thereof, plus accrued interest, if any, from April __, 1998, to the settlement
date for the U.S. Option Notes. Said option may be exercised only to cover
over-allotments in the sale of the U.S. Underwritten Notes by the U.S.
Underwriters. Said option may be exercised in whole or in part at any time (but
not more than once) on or before the 30th day after the date of the Offering
U.S. Prospectus upon written or telegraphic notice by the U.S. Representatives
to the Company setting forth the principal amount of U.S. Option Notes as to
which the several U.S. Underwriters are exercising the option and the settlement
date; provided, however, that to the extent that both the option provided for in
this Section 2(d) and the option provided for in Section 2(d) of the
International Underwriting Agreement are exercised, (i) such exercises shall
occur on the same date and (ii) the settlement dates in respect thereof shall be
the same date. Delivery of certificates for the U.S. Option Notes, and payment
therefor, shall be made as provided in Section 3 hereof. The principal amount of
U.S. Option Notes to be purchased by each U.S. Underwriter shall be the same
percentage of the total principal amount of U.S. Option Notes to be purchased by
the U.S. Underwriters as such U.S. Underwriter is purchasing of the U.S.
Underwritten Notes, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional principal amounts.
3. Delivery and Payment. Delivery of and payment for the U.S.
Underwritten Shares, the U.S. Underwritten Notes, and the U.S. Option Shares (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) and the U.S. Option
Notes (if the option provided for in Section 2(d) 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 ___________, 1998, or at such time
on such later date not more than three Business Days after the foregoing date as
the U.S. Representatives shall designate, which date and time may be postponed
by agreement among the U.S. Representatives, the Company and the Selling
Stockholders or as provided in Section 9 hereof (such date and time of delivery
and payment for the U.S. Securities being herein called the "Closing Date").
Delivery of the U.S. Securities shall be made to the U.S. Representatives for
the respective accounts of the several U.S. Underwriters against payment by the
several U.S. Underwriters through the U.S. Representatives of (i) $_____ by wire
transfer payable in same-day funds to an account of the Korea Development Bank
specified by the Company and (ii) the balance of the respective aggregate
purchase prices of the U.S. Securities being sold by the Company and each
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of the Selling Stockholders to or upon the order of the Company and each of the
Selling Stockholders by wire transfer payable in same-day funds to the accounts
specified by the Company and each of the Selling Stockholders or by such other
method as shall be agreed upon by the U.S. Representatives and the Company and
such Selling Stockholders. Delivery of the U.S. Securities shall be made through
the facilities of the Depository Trust Company unless the U.S. Representatives
shall otherwise instruct.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the International Underwriting
Agreement.
Each Selling Stockholder will pay all applicable state transfer
taxes, if any, involved in the transfer to the several U.S. Underwriters of the
U.S. Shares to be purchased by them from such Selling Stockholders and the
respective U.S. Underwriters will pay any additional stock transfer taxes
involved in further transfers.
If the option provided for in Section 2(b) and/or Section 2(d)
hereof is exercised on or after the second Business Day prior to the Closing
Date, the Company will deliver (at the expense of the Company) to the U.S.
Representatives, on the date(s) specified by the U.S. Representatives (which
shall be within three Business Days after exercise of said option(s)), the U.S.
Option Shares and/or U.S. Option Notes against payment by the several U.S.
Underwriters through the U.S. Representatives 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 or by such other method as shall be agreed
upon by the U.S. Representatives and the Company. Delivery of the U.S. Option
Shares and/or U.S. Option Notes shall be made through the facilities of the
Depository Trust Company unless the U.S. Representatives shall otherwise
instruct. If settlement for the U.S. Option Shares and/or U.S. Option Notes
occurs after the Closing Date, the Company will deliver to the U.S.
Representatives on the settlement date(s), and the obligation of the U.S.
Underwriters to purchase the U.S. Option Shares and/or U.S. Option Notes, as the
case may be, shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date(s) the opinions,
certificates and letters delivered on the Closing Date pursuant to Section 6
hereof.
4. Offering by Underwriters. It is understood that the several U.S.
Underwriters propose to offer the U.S. Securities for sale to the public as set
forth in the Offering Prospectuses.
5. Other Agreements.
A. The Company agrees with the several U.S. Underwriters that:
(a) The Company will use its best efforts to cause the Offering
Registration Statement, if not effective at the Execution Time, and any
amendment thereof to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of the
Offering Registration Statement or supplement to the Offering Prospectuses
or any Rule 462(b) Registration Statement unless the Company has furnished
you a copy for your review prior to filing and will not
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file any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Offering Registration
Statement has become or becomes effective pursuant to Rule 430A, or filing
of the Offering Prospectuses is otherwise required under Rule 424(b), the
Company will cause the Offering Prospectuses, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the U.S. Representatives of such
timely filing. The Company will promptly advise the U.S. Representatives
(i) when the Offering Registration Statement, if not effective at the
Execution Time, shall have become effective, (ii) when the Offering
Prospectuses, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission,
(iii) when, prior to termination of the offering of the Securities, any
amendment to the Offering Registration Statement shall have been filed or
become effective, (iv) of any request by the Commission for any amendment
of the Offering Registration Statement or any Rule 462(b) Registration
Statement, or for any supplement to the Offering Prospectuses or for any
additional information, (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Offering Registration Statement
or the institution or threatening of any proceeding for that purpose and
(vi) of the receipt by the Company of any notification in writing with
respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or with respect to the initiation 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 suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result of
which either of the Offering Prospectuses 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 not misleading, or if it shall be
necessary to amend the Offering Registration Statement or supplement
either of the Offering Prospectuses to comply with the Act or the rules
thereunder, the Company promptly will (i) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement or
omission or effect such compliance and (ii) supply any supplemented
Offering Prospectuses to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the U.S. Representatives an
earnings statement or statements of the Company and the Subsidiaries which
will satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the U.S. Representatives and
counsel for the U.S. Underwriters, without charge, signed copies of the
Offering Registration Statement (including exhibits thereto) and to each
other U.S. Underwriter a copy of the
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Offering Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by a U.S. Underwriter or dealer may be required
by the Act, as many copies of each U.S. Offering Preliminary Prospectus
and the Offering U.S. Prospectus and any supplement thereto as the U.S.
Representatives may reasonably request; provided, that, without limiting
the foregoing, the Company will furnish to each U.S. Underwriter such
number of copies of the Offering U.S. Prospectus as the U.S.
Representatives shall request for purposes of confirming orders for the
U.S. Securities, which copies shall be delivered to the U.S. Underwriters
by (i) if the public offering price is determined after 12:00 noon, New
York City time, on the date of determination of the public offering price,
5:00 PM, New York City time, on the Business Day immediately following
such date and (ii) if the public offering price is determined at or prior
to 12:00 noon, New York City time, on the date of determination of the
public offering price, 9:00 AM, New York City time, on the Business Day
immediately following such date. The Company will pay the expenses of
printing or other production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the U.S. Representatives may designate, will maintain
such qualifications in effect so long as required for the distribution of
the U.S. Securities and will pay any fee of the NASD, in connection with
its review of the offering; provided, however, that the Company shall not
be required in connection therewith, as a condition thereof, to qualify as
a foreign corporation or to execute a general consent to service of
process in any jurisdiction or subject itself to taxation as doing
business in any jurisdiction.
(f) The Company will not, for a period of 180 days following the
Execution Time, without the prior written consent of SBI, offer, pledge,
sell or contract to sell, or otherwise dispose of (or enter into any
transaction which is designed to, or could be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or any
affiliate of the Company), directly or indirectly, or announce the
offering of, any other shares of Common Stock or any securities or options
convertible into, or exchangeable or exercisable for, shares of Common
Stock (other than the Notes); provided, however, that the Company may
grant options and may issue and sell shares of Common Stock pursuant to
any employee stock option plan, stock ownership plan or dividend
reinvestment plan of the Company that was approved by the Board of
Directors of the Company prior to the Execution Time and the Company may
issue shares of Common Stock issuable upon the conversion of securities or
the exercise of warrants outstanding at the Execution Time.
(g) The Company will use the net proceeds to the Company of the
offering of the Securities as described under the heading "Use of
Proceeds" in the Offering Prospectuses.
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(h) The Company will use its best efforts to have the Notes
approved for quotation on the Nasdaq Stock Market.
(i) The Company will use its best efforts to have ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP issue, on or prior to May 15, 1998 (or, to the extent such
date is prior to the Closing Date, within _____ Business Days after the
Closing Date), a revised audit report with respect to the combined
financial statements of the Company contained in the Offering
Prospectuses, which audit report shall not contain any qualification as to
the Company's ability to continue as a going concern.
(j) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter
92-198, An Act Relating to Disclosure of Doing Business with Cuba, and the
Company further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba after
the date the Offering Registration Statement becomes or has become
effective with the Commission or with the Florida Department of Banking
and Finance (the "Department"), whichever date is later, or if the
information reported in the Offering Prospectuses, if any, concerning the
Company's business with Cuba or with any person or affiliate located in
Cuba changes in any material way, the Company will provide the Department
notice of such business or change, as appropriate, in a form acceptable to
the Department.
B. Each Selling Stockholder agrees with the several U.S.
Underwriters that it will not during the period of 180 days following the
Execution Time, without the prior written consent of SBI or unless pursuant to
the Securities Loan Agreement, offer, sell or contract to sell, or otherwise
dispose of, directly or indirectly, or announce the offering of, any other
shares of Common Stock beneficially owned by such person, or any securities
convertible into, or exchangeable for, shares of Common Stock other than shares
of Common Stock disposed of as bona fide gifts.
C. Each U.S. Underwriter agrees that (i) it is not purchasing any of
the U.S. Securities for the account of anyone other than a United States or
Canadian Person, (ii) it has not offered or sold, and will not offer or sell,
directly or indirectly, any of the U.S. Securities or distribute any Offering
U.S. Prospectus to any person outside the United States or Canada, or to anyone
other than a United States or Canadian Person, and (iii) any dealer to whom it
may sell any of the U.S. Securities will represent that it is not purchasing for
the account of anyone other than a United States or Canadian Person and agree
that it will not offer or resell, directly or indirectly, any of the U.S.
Securities outside the United States or Canada, or to anyone other than a United
States or Canadian Person or to any other dealer who does not so represent and
agree; provided, however, that the foregoing shall not restrict (i) purchases
and sales between the International Underwriters on the one hand and the U.S.
Underwriters on the other hand pursuant to the Agreement Between U.S.
Underwriters and International Underwriters, (ii) stabilization transactions
contemplated under the Agreement Between U.S. Underwriters and International
Underwriters, conducted through SBI (or through the U.S. Representatives and
International Representatives) as part of the distribution of the Securities,
and (iii) sales to or through (or
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distributions of Offering U.S. Prospectuses or Offering U.S. Preliminary
Prospectuses to) United States or Canadian Persons who are investment advisors,
or who otherwise exercise investment discretion, and who are purchasing for the
account of anyone other than a United States or Canadian Person.
The agreement of the U.S. Underwriters set forth in the above
paragraph shall terminate upon the earlier of the following events:
(i) a mutual agreement of the U.S. Representatives and the
International Representatives to terminate the selling restrictions set forth
in such paragraph and in Section 5C(a) of the International Underwriting
Agreement; or
(ii) the expiration of a period of 30 days after the Closing Date,
unless (A) the International Representatives shall have given notice to the
Company and the U.S. Representatives that the distribution of the International
Securities by the International Underwriters has not yet been completed, or (B)
the U.S. Representatives shall have given notice to the Company and the
International Underwriters that the distribution of the U.S. Securities by the
U.S. Underwriters has not yet been completed. If such notice by the U.S.
Representatives or the International Representatives is given, the agreements
set forth in such paragraph shall survive until the earlier of (1) the event
referred to in clause (i) above or (2) the expiration of an additional period of
30 days from the date of any such notice.
6. Conditions to the Obligations of the U.S. Underwriters. The
obligations of the U.S. Underwriters to purchase (i) the U.S. Underwritten
Shares and the U.S. Underwritten Notes and (ii) the U.S. Option Shares and the
U.S. Option Notes, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders contained herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company and the Selling Stockholders made in any certificates pursuant to
the provisions hereof, to the performance by the Company and the Selling
Stockholders of their respective obligations under this Agreement and to the
following additional conditions:
(a) If any Registration Statement has not become effective
prior to the Execution Time, unless the U.S. Representatives agree in
writing to a later time, such Registration Statement will become effective
not later than (i) 6:00 PM, New York City time, on the date of
determination of the public offering price of the Securities, if such
determination occurred at or prior to 3:00 PM, New York City time, on such
date or (ii) 9:30 AM, New York City time, on the Business Day following
the day on which the public offering price of the Securities was
determined, if such determination occurred after 3:00 PM, New York City
time, on such date; if filing of any of the Prospectuses, or any
supplement thereto, is required pursuant to Rule 424(b), the Prospectuses,
and any such supplement, will be filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of any Registration Statement
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shall have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to the U.S.
Representatives the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel
for the Company, dated the Closing Date, to the effect that:
(i) each of the Company and the Subsidiaries chartered or
organized under the laws of any state of the United States (the
"U.S. Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Prospectuses;
(ii) all the outstanding shares of capital stock of each
U.S. Subsidiary have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set forth
in the Prospectuses, all outstanding shares of capital stock of the
U.S. Subsidiaries are owned by the Company, either directly or
through wholly owned Subsidiaries, free and clear of any perfected
security interest and, to the knowledge of such counsel, any other
security interests, claims, liens or encumbrances;
(iii) the capital stock of the Company conforms as to legal
matters in all material respects to the description thereof
contained in the Prospectuses; the outstanding shares of Common
Stock (including the Shares being sold hereunder by the Selling
Stockholders) have been duly and validly authorized and issued and
are fully paid and nonassessable; the Shares have been duly and
validly authorized and, when issued and delivered to and paid for by
the U.S. Underwriters pursuant to this Agreement and by the
International Underwriters pursuant to the International
Underwriting Agreement, will be fully paid and nonassessable; the
Shares have been duly authorized for listing, subject to official
notice of issuance, on the Nasdaq National Market; the certificates
for the Shares are in valid and sufficient form; the holders of
outstanding shares of capital stock of the Company are not entitled
to preemptive or other rights to subscribe for the Shares under the
Articles of Incorporation or bylaws of the Company or under the laws
of the State of Delaware; and, to the knowledge of such counsel,
except as set forth in the Prospectuses, 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;
(iv) The Indenture has been duly authorized, executed and
delivered; the Indenture has been duly qualified under the Trust
Indenture Act and constitutes a valid and binding obligation of the
Company; the Notes have been duly authorized and, when executed by
the Company and authenticated in
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accordance with the terms of the Indenture and paid for by the
holders thereof, will constitute valid, binding and enforceable
obligations of the Company entitled to the benefits provided by the
Indenture, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and to general principles
of equity; the shares of Common Stock issuable upon conversion of
the Notes have been duly authorized for listing, subject to official
notice of issuance, on the Nasdaq National Market; the holders of
the outstanding shares of capital stock of the Company are not
entitled, under the Articles of Incorporation or bylaws of the
Company or under the laws of the State of Delaware, to any
preemptive or other rights to subscribe for the Notes or the shares
of Common Stock issuable upon the conversion thereof; the shares of
Common Stock initially issuable upon conversion of the Notes have
been duly and validly authorized and reserved for issuance upon such
conversion and, when issued upon conversion, will be validly issued,
fully paid and nonassessable; and the Notes and the Indenture
conform in all material respects to the descriptions thereof
contained in the Offering Prospectuses.
(v) to the knowledge of such counsel, there is no pending
action, suit or proceeding, or any written threat thereof, by or
before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of the Subsidiaries of a
character required to be disclosed in any Registration Statement
which is not adequately disclosed in the Prospectuses, and there is
no franchise, contract or other document of a character required to
be described in any Registration Statement or Prospectus, or to be
filed as an exhibit, which is not described or filed as required;
and the statements in the Prospectuses under the headings
"Reorganization," "Description of Capital Stock," "Description of
the Convertible Notes," "Shares Eligible for Future Sale" and
"Certain United States Federal Tax Consequences to Non-United States
Holders of Common Stock and Convertible Notes," insofar as such
statements constitute a summary of legal matters referred to
therein, fairly summarize the information called for with respect to
such legal matters;
(vi) the Registration Statements have become effective under
the Act; any required filing of the Prospectuses, and of any
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the
effectiveness of any Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened and
the Registration Statements and the Prospectuses (other than the
financial statements and other financial and statistical information
contained therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable
requirements of the Act and the rules thereunder; and such counsel
has no reason to believe that on the Effective Date or at the
Execution Time the Registration Statements contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make
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the statements therein not misleading or that the Prospectuses as of
its date and on the Closing Date included or includes any untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each
case, other than the financial statements and other financial
information contained therein, as to which such counsel need express
no opinion);
(vii) each of this Agreement and the International
Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(viii) no consent, approval, authorization, filing with or
order of any court or governmental agency or body is required in
connection with the transactions contemplated herein or in the
International Underwriting Agreement, 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 U.S. Underwriters and the
International Underwriters in the manner contemplated in this
Agreement and the International Underwriting Agreement and in the
Offering Prospectuses and such other approvals (specified in such
opinion) as have been obtained;
(ix) neither the issue and sale of the Securities nor the
performance of the Company's obligations hereunder or under the
International Underwriting Agreement nor the fulfillment of the
terms hereof or thereof will conflict with, or result in a breach or
violation of or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of the U.S.
Subsidiaries pursuant to, (i) the charter or bylaws of the Company
or any U.S. Subsidiary or (ii) any U.S., California or Delaware
statute, law, rule, regulation, judgment, order or decree known to
such counsel applicable to the Company or any U.S. Subsidiary of any
U.S., California or Delaware court, governmental body, arbitrator or
other authority having jurisdiction over the Company or any U.S.
Subsidiary or any of their respective properties;
(x) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statements;
(xi) each of the AICL Agreements has been duly authorized,
executed and delivered by the Company and the U.S. Subsidiaries that
are parties thereto (the "U.S. Subsidiary Parties") and is a valid,
binding and enforceable agreement of the Company and the U.S.
Subsidiary Parties, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general
principles of equity; neither the consummation of the transactions
contemplated in any of the AICL Agreements nor the fulfillment of
the terms thereof will conflict with, or result in a breach or
violation of or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any
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24
of the U.S. Subsidiary Parties pursuant to, the charter or bylaws of
the Company or any U.S. Subsidiary Party; and
(xii) the Company is not and, after giving effect to the
offering and sale of the Securities and application of the proceeds
thereof as described in the Prospectuses under the caption "Use of
Proceeds," will not be an "investment company" within the meaning of
the 1940 Act.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than
the State of California, the United States or the corporate laws of the
State of Delaware or, with respect to the opinion referred to in
sub-paragraph (iv) above, the laws of the State of New York (to the extent
such opinion relates to the validity and binding effect of the Indenture),
to the extent they deem proper and specify in such opinion, upon the
opinion of other counsel of good standing whom they believe to be reliable
and who are satisfactory to counsel for the U.S. Underwriters and (B) 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. References to the
Prospectuses in this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Company shall have furnished to the U.S.
Representatives the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇, Esq., the General Counsel of
the Company, dated the Closing Date, to the effect that:
(i) neither the issue and sale of the Securities nor the
consummation of any other of the transactions contemplated herein or
in the International Underwriting Agreement nor the fulfillment of
the terms hereof or thereof will conflict with, or result in a
breach or violation of or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of the
U.S. Subsidiaries pursuant to, (i) the charter or bylaws of the
Company or any U.S. Subsidiary or (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement known to such counsel to which the
Company or any U.S. Subsidiary is a party or bound or to which its
property is subject (except for such breaches or violations which
would not, individually or in the aggregate, have a Material Adverse
Effect) or (iii) any Pennsylvania statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any U.S.
Subsidiary of any Pennsylvania court, governmental body, arbitrator
or other authority having jurisdiction over the Company or any U.S.
Subsidiary or any of their respective properties; and
(ii) neither the consummation of the transactions
contemplated in any of the AICL Agreements nor the fulfillment of
the terms thereof will conflict with, or result in a breach or
violation of or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of the U.S. Subsidiary
Parties pursuant to, (i) the charter or bylaws of the Company or any
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25
U.S. Subsidiary Party or (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement known to such counsel to which the Company or any
U.S. Subsidiary Party is a party or bound or to which their
respective property is subject (except for such breaches or
violations which would not, individually or in the aggregate, have a
Material Adverse Effect) or (iii) any Pennsylvania statute, law,
rule, regulation, judgment, order or decree applicable to the
Company or any U.S. Subsidiary Party of any Pennsylvania court,
governmental body, arbitrator or other authority having jurisdiction
over the Company or any U.S. Subsidiary Party or any of their
respective properties; no consent, approval, authorization, filing
with or order of any U.S. court or governmental agency or body is
required in connection with the transactions contemplated in any of
the AICL Agreements, except ______________ [LIST APPROVALS (IF ANY)
REQUIRED], each of which has been obtained.
In rendering such opinion, such counsel may rely as to matters
involving the application of laws of any jurisdiction other than the State
of Pennsylvania, 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 U.S. Underwriters.
Such opinion may also contain customary qualifications and limitations.
(d) The Company shall have furnished to the U.S.
Representatives the opinion of Orloge, Del Costello, Bacorro, Odulco,
Calma & Carobonell, Philippine counsel for the Company, dated the
Closing Date, to the effect that:
(i) each of AAP, AAAP and AMI (the "Philippine
Subsidiaries") has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction in
which it is chartered or organized, with full corporate power and
authority to own its properties and conduct its business, and is
duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction which requires
such qualification; and
(ii) all the outstanding shares of capital stock of each
Philippine Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except (i) such
shares of AAP owed by AICL, which shares do not exceed 40.1% of the
outstanding shares of AAP, (ii) such shares of each Phillipine
Subsidiary owned by directors thereof, which shares in each case do
not exceed 0.1 % of the outstanding shares of such Philippine
Subsidiary, (iii) 3,446,476 shares of preferred stock of AAP, which
shares are owned by Integrated Microelectronics, Inc., and (iv) as
otherwise set forth in the Prospectuses, all outstanding shares of
capital stock of the Philippine Subsidiaries are owned by the
Company, either directly or through wholly owned Subsidiaries, free
and clear of
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26
any perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interests, claims,
liens or encumbrances.
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. References to the
Prospectuses in this paragraph (d) include any supplements thereto at the
Closing Date.
(e) The Company shall have furnished to the U.S.
Representatives the opinion of ▇▇▇ & ▇▇▇▇▇, Korean counsel for the
Company, dated the Closing Date, to the effect that:
(i) AICL has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the Republic of
Korea, with full corporate power and authority to own its properties
and conduct its business as described in the Prospectuses;
(ii) each of the AICL Agreements has been duly executed and
delivered by AICL and is a valid, binding and enforceable agreement
of AICL, subject to applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and to general principles
of equity;
(iii) no consent, approval, authorization, filing with or
order of any court or governmental agency or body in the Republic of
Korea is required in connection with the transactions contemplated
in the AICL Agreements, except _________________, each of which has
been obtained; and
(iv) neither the consummation of any of the transactions
contemplated in the AICL Agreements nor the fulfillment of the terms
thereof will conflict with or result in a breach or violation of the
Articles of Incorporation of AICL or any statute, law, rule or
regulation of any regulatory body, administrative agency,
governmental body or other authority in the Republic of Korea having
jurisdiction over AICL or any of its properties.
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 AICL and public officials. Such opinion may also contain
customary qualifications and limitations. References to the Prospectuses
in this paragraph (e) include any supplements thereto at the Closing Date.
(f) The Selling Stockholders shall have furnished to the U.S.
Representatives the opinion of Wilson, Sonsini, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel
for the Selling Stockholders, dated the Closing Date, to the effect that:
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(i) this Agreement, the International Underwriting Agreement
and the Custody Agreement have been duly executed and delivered by
the Selling Stockholders and each Selling Stockholder has full legal
right, capacity, power and authority to enter into and perform this
Agreement, the International Underwriting Agreement and the Custody
Agreement and to sell, transfer, assign and deliver in the manner
provided in this Agreement, the International Underwriting Agreement
and the Custody Agreement the Shares being sold by such Selling
Stockholder hereunder and thereunder;
(ii) upon the delivery by each Selling Stockholder to the
several U.S. Underwriters and the several International Underwriters
of certificates for the Shares being sold hereunder and under the
International Underwriting Agreement by such Selling Stockholder
against payment therefor as provided herein, the U.S. Underwriters
and the International Underwriters will have good and valid title to
such Shares, free and clear to the knowledge of such counsel of any
adverse claims;
(iii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation by any Selling Stockholder of the transactions
contemplated herein or in the International Underwriting Agreement,
except such as may 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 Shares by the
U.S. Underwriters and the International Underwriters and such other
approvals (specified in such opinion) as have been obtained;
(iv) neither the sale of the Shares being sold by any Selling
Stockholder nor the consummation of any other of the transactions
contemplated herein or in the International Underwriting Agreement
by any Selling Stockholder or the fulfillment of the terms hereof or
thereof by any Selling Stockholder will conflict with, result in a
breach or violation of, or constitute a default under any law or the
charter or bylaws of such Selling Stockholder, or any judgment,
order or decree known to such counsel to be applicable to such
Selling Stockholder of any court, governmental body or arbitrator
having jurisdiction over such Selling Stockholder; and
(v) the Securities Loan Agreement has been duly executed
and delivered by Mr. and ▇▇▇. ▇▇▇▇▇ ▇. ▇▇▇; Mr. and ▇▇▇. ▇▇▇▇▇ ▇.
▇▇▇ have full legal right, capacity, power and authority to enter
into and perform the Securities Loan Agreement and to lend,
assign and deliver in the manner provided in the Securities Loan
Agreement the Borrowed Shares being lent by Mr. and ▇▇▇. ▇▇▇▇▇ ▇.
▇▇▇ thereunder; Mr. and ▇▇▇. ▇▇▇▇▇ ▇. ▇▇▇ have good and valid
title to the Borrowed Shares, free and clear to the knowledge of
such counsel of any adverse claims; no consent, approval,
authorization or order of any court or governmental agency or
body is required for the consummation by Mr. and Mrs.
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▇▇▇▇▇ ▇. ▇▇▇ of the transactions contemplated in the Securities Loan
Agreement, except such as may have been obtained under the Act and
such as may be required under the blue sky laws of any jurisdiction
in connection with the borrowing and distribution of the Borrowed
Shares by SBI and such other approvals (specified in such opinion)
as have been obtained; and neither the lending of the Borrowed
Shares by Mr. and ▇▇▇. ▇▇▇▇▇ ▇. ▇▇▇ nor the consummation of any
other of the transactions contemplated in the Securities Loan
Agreement by Mr. and ▇▇▇. ▇▇▇▇▇ ▇. ▇▇▇ or the fulfillment of the
terms thereof by Mr. and ▇▇▇. ▇▇▇▇▇ ▇. ▇▇▇ will conflict with,
result in a breach or violation of, or constitute a default under
any law or the terms of any indenture or other agreement or
instrument known to such counsel and to which Mr. and ▇▇▇. ▇▇▇▇▇ ▇.
▇▇▇ (or either of them) are a party or bound, or any judgment, order
or decree known to such counsel to be applicable to Mr. and ▇▇▇.
▇▇▇▇▇ ▇. ▇▇▇ (or either of them) of any court, governmental body or
arbitrator having jurisdiction over either of them.
In rendering such opinion, such counsel may (A) rely as to
matters involving the application of laws of any jurisdiction other than
the State of California or Delaware or the United States, to the extent
they deem proper and specified in such opinion, upon the opinion of other
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the U.S. Underwriters, (B) rely as to matters
of fact, to the extent they deem proper, on certificates of the Selling
Stockholders (including Mr. and ▇▇▇. ▇▇▇▇▇ ▇. ▇▇▇) and public officials
and (C) with respect to the opinion in clause (ii) above, may assume each
U.S. Underwriter and each International Underwriter takes delivery of the
Shares without notice of any adverse claim. Such opinion may also contain
customary qualifications and limitations.
(g) The U.S. Representatives shall have received from Cleary,
Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the U.S. Underwriters, such
opinion or opinions, dated the Closing Date, with respect to the issuance
and sale of the U.S. Securities, the Registration Statements, the
Prospectuses (together with any supplement thereto) and other related
matters as the U.S. Representatives may reasonably require, and the
Company and each Selling Shareholder 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 furnished to the U.S.
Representatives 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
Statements, the Prospectuses, any supplements to the Prospectuses, this
Agreement and the International Underwriting Agreement and that:
(i) the representations and warranties of the Company in
this Agreement and the International Underwriting Agreement are true
and correct in all material respects 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
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satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of any
Registration Statement 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 Prospectuses, there has been no material adverse
change in the condition (financial or other), prospects, earnings,
business or properties of the Company and the 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
Prospectuses.
(i) Each Selling Stockholder shall have furnished to the U.S.
Representatives a certificate, signed by or on behalf of such Selling
Stockholder, dated the Closing Date, to the effect that the signer of such
certificate has carefully examined the Offering Registration Statement,
the Offering Prospectuses, any supplement to the Offering Prospectuses,
this Agreement and the International Underwriting Agreement and that the
representations and warranties of such Selling Stockholder in this
Agreement and the International Underwriting Agreement are true and
correct in all material respects on and as of the Closing Date to the same
effect as if made on the Closing Date.
(j) At the Execution Time and at the Closing Date, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP shall have furnished to the U.S. Representatives letters,
dated respectively as of the Execution Time and as of the Closing Date, in
form and substance satisfactory to the U.S. Representatives, confirming
that they are independent accountants within the meaning of the Act and
the applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included in the Registration
Statements and the Prospectuses and reported on by them comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and the
Subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter;
a reading of the minutes of the meetings of the stockholders,
directors and the audit and compensation committees of the Company
and the Subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters
of the Company and the Subsidiaries as to transactions and
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30
events subsequent to December 31, 1997, nothing came to their
attention which caused them to believe that:
(1) with respect to the period subsequent to
December 31, 1997, there were any changes, at a specified date
not more than five business days prior to the date of the
letter, in the long-term debt of the Company and the
Subsidiaries or capital stock of the Company or decreases in
the total stockholders' equity of the Company or decreases in
working capital of the Company and the Subsidiaries as
compared with the amounts shown on the December 31, 1997
combined balance sheet included in the Registration Statements
and the Prospectuses, or for the period from December 31, 1997
to such specified date there were any decreases, as compared
with the corresponding period in the preceding quarter, in
revenues, net operating income or interest expense or in total
or per share amounts of net income of the Company and the
Subsidiaries, except in all instances for changes or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the U.S.
Representatives;
(2) the information included in the Registration
Statements and Prospectuses in response to Item 301 (Selected
Financial Data), Item 302 (Supplementary Financial
Information) and Item 402 (Executive Compensation) of
Regulation S-K under the Act is not in conformity with the
applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and the Subsidiaries) set
forth in the Registration Statements and the Prospectuses, including
the information set forth under the captions "Summary Financial
Data" and "Selected Financial Data" in the Prospectuses, agrees with
the accounting records of the Company and the Subsidiaries,
excluding any questions of legal interpretation.
References to the Prospectuses in this paragraph (j) include any
supplement thereto at the date of the letter.
(k) At the Execution Time and at the Closing Date, Samil
Accounting Corporation shall have furnished to the U.S. Representatives
and the Company a letter or letters, dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the U.S. Representatives and the Company, confirming that
they are independent accountants within the meaning of the standards
established for independent certified public accountants in the Republic
of Korea and stating in effect
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that they have performed certain specified procedures as a result of which
they determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of
AICL) set forth in the Registration Statements and the Prospectuses,
including the information set forth under the captions "Risk Factors --
Dependence on Relationship with AICL; Potential Conflicts of Interest" and
"Relationship with Anam Industrial Co., Ltd." in the Prospectuses, agrees
with the accounting records of AICL, excluding any questions of legal
interpretation. References to the Prospectuses in this paragraph (k)
include any supplement thereto at the date of the letter.
(l) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statements (exclusive
of any amendment thereof) and the Prospectuses, there shall not have been
(i) any change or decrease specified in the letter or letters referred to
in paragraph (j) of this Section 6 or (ii) any change, or any development
involving a prospective change, in or affecting the business or properties
of the Company and the 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 Prospectuses the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the sole judgment
of the U.S. Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
U.S. Securities as contemplated by the Registration Statements (exclusive
of any amendment thereof) and the Prospectuses.
(m) At the Execution Time, the Company shall have furnished to
the U.S. Representatives and the International Representatives a letter
substantially in the form of Exhibit A hereto from each officer, director
and shareholder (other than the Selling Stockholders) of the Company,
which persons are listed in Schedule III hereto, addressed to the U.S.
Representatives and the International Representatives.
(n) Prior to the Closing Date, the Company shall have furnished
to the U.S. Representatives such further information, certificates and
documents as the U.S. Representatives may reasonably request.
(o) The closing of the purchase of the International Securities
to be issued and sold by the Company pursuant to the International
Underwriting Agreement shall occur concurrently with the closing described
herein.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects 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 in all material respects reasonably satisfactory in form
and substance to the U.S. Representatives and counsel for the U.S. Underwriters,
this Agreement and all obligations of the U.S. Underwriters hereunder may be
canceled at, or at any time prior to, the Closing Date by the U.S.
Representatives. Notice of
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such cancellation shall be given to the Company and each Selling Stockholder in
writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
U.S. Underwriters, at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ the Closing Date.
7. Reimbursement of U.S. Underwriters' Expenses. If the sale of the
U.S. Securities provided for herein is not consummated because any condition to
the obligations of the U.S. Underwriters set forth in Section 6 hereof is not
satisfied or because of any refusal, inability or failure on the part of the
Company or any Selling Stockholder to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the U.S.
Underwriters, the Company will reimburse the U.S. Underwriters severally through
SBI on demand for all reasonable out-of-pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the U.S. Securities. If the
Company is required to make any payments to the U.S. Underwriters under this
Section 7 because of any Selling Stockholder's refusal, inability or failure to
satisfy any condition to the obligations of the U.S. Underwriters set forth in
Section 6, the Selling Stockholders pro rata in proportion to the percentage of
U.S. Shares to be sold by each shall reimburse the Company on demand for all
amounts so paid.
8. Indemnification and Contribution. (a) The Company and ▇▇. ▇▇▇▇▇
▇. ▇▇▇ jointly and severally agree to indemnify and hold harmless each U.S.
Underwriter (including, without limitation, SBI (the "Market Maker") in its
capacity as a market maker for the Securities and SBI (the "Independent
Underwriter") in its capacity as "qualified independent underwriter" (within the
meaning of NASD Conduct Rule 2720)), the directors, officers, employees and
agents of each U.S. Underwriter, and each person who controls any U.S.
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 untrue
statement of a material fact contained in the Offering Registration Statement or
in any amendment thereof, or in any Offering Preliminary Prospectus or in either
of the Offering Prospectuses, 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 and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇
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 any U.S. Underwriter through the U.S. Representatives
specifically for inclusion therein. This indemnity
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agreement will be in addition to any liability which the Company or ▇▇. ▇▇▇▇▇ ▇.
▇▇▇ ▇▇▇ otherwise have.
(b) Each U.S. Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Offering Registration Statement, and each person who controls the Company within
the meaning of either the Act or the Exchange Act and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, to the
same extent as the foregoing indemnity from the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇ to
each U.S. Underwriter, but only with reference to written information relating
to such U.S. Underwriter furnished to the Company by or on behalf of such U.S.
Underwriter through the U.S. Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any U.S. Underwriter may otherwise have.
The Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇ acknowledge that the statements set forth in
the last paragraph of the front cover page, the last paragraph of the inside
front cover page and, under the heading "Underwriting", the paragraphs in the
Offering Registration Statement, any Offering Preliminary Prospectus and the
Offering Prospectuses and any amendment or supplement thereto constitute the
only information furnished in writing by or on behalf of the several U.S.
Underwriters for inclusion in any Offering Preliminary Prospectus or the
Offering Prospectuses and any amendment or supplement thereto.
(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 any 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 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 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 one separate counsel (and one local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate (and local) 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
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
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authorize the indemnified party in writing to employ separate (and local)
counsel at the expense of the indemnifying party. An indemnifying party will
not, 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 parties to such claim or action)
unless such settlement, compromise or consent includes 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) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇, jointly and
severally, and the U.S. Underwriters 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 one or more
of the U.S. Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇ on
the one hand and by the U.S. Underwriters on the other from the offering of the
U.S. Securities; provided, however, that in no case shall any U.S. Underwriter
(except as may be provided in any agreement among underwriters relating to the
offering of the U.S. Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the U.S. Securities purchased
by such U.S. Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
▇▇. ▇▇▇▇▇ ▇. ▇▇▇, jointly and severally, and the U.S. Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and ▇▇. ▇▇▇▇▇ ▇.
▇▇▇ on the one hand and of the U.S. Underwriters 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 and ▇▇.
▇▇▇▇▇ ▇. ▇▇▇ shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by them, and benefits received by
the U.S. Underwriters 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
Offering U.S. Prospectus. Benefits received by the Independent Underwriter in
its capacity as "qualified independent underwriter" shall be deemed to be equal
to the compensation received by the Independent Underwriter for acting in such
capacity. Relative fault shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
provided by the Company or ▇▇. ▇▇▇▇▇ ▇. ▇▇▇ on the one hand or by the U.S.
Underwriters 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 U.S.
Underwriters 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 a U.S. Underwriter within the meaning of either the Act or the Exchange
Act and each
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director, officer, employee and agent of a U.S. Underwriter shall have the same
rights to contribution as such U.S. 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 Offering Registration Statement
and each director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
(e) The liability of each Selling Stockholder under such Selling
Stockholder's representations and warranties contained in Section 1 hereof and
under the indemnity and contribution agreements contained in this Section 8
shall be limited to an amount equal to the initial public offering price of the
U.S. Shares sold by such Selling Stockholder to the U.S. Underwriters, less the
underwriting discounts and commissions paid thereon to the U.S. Underwriters.
The Company and the Selling Stockholders may agree, as among themselves and
without limiting the rights of the U.S. Underwriters under this Agreement, as to
the respective amounts of such liability for which they each shall be
responsible.
(f) The Company and ▇▇. ▇▇▇▇▇ ▇. ▇▇▇ shall not have any liability
under this Section 8 with respect to any losses, claims, damages or liabilities
of a U.S. Underwriter if copies of the Offering U.S. Prospectus, as then amended
or supplemented, were furnished by the Company to the U.S. Underwriters as
required by this Agreement, and such copies of the Offering U.S. Prospectus were
not sent or given by or on behalf of such U.S. Underwriter, as required by law,
to the purchasers of the U.S. Securities and if the Offering U.S. Prospectus, as
so amended or supplemented, would have cured the defect giving rise to such
losses, claims, damages or liabilities.
9. Default by a U.S. Underwriter. If any one or more U.S.
Underwriters shall fail to purchase and pay for any of the U.S. Shares or U.S.
Notes agreed to be purchased by such U.S. Underwriter or U.S. Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining U.S.
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of U.S. Shares or U.S. Notes, as the
case may be, set forth opposite their names in Schedule I hereto bears to the
aggregate amount of U.S. Shares or U.S. Notes, as the case may be, set forth
opposite the names of all the remaining U.S. Underwriters) the U.S. Shares or
U.S. Notes which the defaulting U.S. Underwriter or U.S. Underwriters agreed but
failed to purchase; provided, however, that in the event that (x) the aggregate
amount of U.S. Shares which the defaulting U.S. Underwriter or U.S. Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of U.S.
Shares set forth in Schedule I hereto or (y) the aggregate principal amount of
U.S. Notes which the defaulting U.S. Underwriter or U.S. Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate principal amount of U.S.
Notes set forth in Schedule I hereto, then the remaining U.S. Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the U.S. Shares or U.S. Notes, as the case may be, and if such
nondefaulting U.S. Underwriters do not purchase all the U.S. Shares or U.S.
Notes, as the case may be, this Agreement will terminate without liability to
any nondefaulting U.S. Underwriter, the Selling Stockholders or the Company. In
the event of a default by any U.S. Underwriter as set forth in this Section 9,
the Closing Date shall be
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postponed for such period, not exceeding five Business Days, as the U.S.
Representatives shall determine in order that the required changes in the
Registration Statements and the Prospectuses or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting U.S. Underwriter of its liability, if any, to the Company, the
Selling Stockholders and any nondefaulting U.S. Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the U.S. Representatives, by notice given to the
Company prior to delivery of and payment for the U.S. Securities, if 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 National Market, (ii) a banking moratorium shall have been declared
by either 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
U.S. Representatives, impracticable or inadvisable to proceed with the offering
or delivery of the U.S. Securities as contemplated in the Offering U.S.
Prospectus.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of each Selling Stockholder and of the U.S.
Underwriters 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 any
U.S. Underwriter, any Selling Stockholder or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the U.S. Securities. The provisions of
Sections 7 and 8 and the last sentence of Section 9 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the U.S. Representatives, will be
mailed, delivered or telefaxed to the SBI General Counsel (fax no.: (212)
________) and confirmed to the General Counsel, care of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., at
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; or,
if sent to the Company, will be mailed, delivered or telefaxed to ▇▇▇▇▇ ▇. ▇▇▇
(fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of the Legal Department, with a copy to
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; or, if sent to the Selling
Stockholders, will be mailed, delivered, or telefaxed to ▇▇▇▇▇ ▇. ▇▇▇ (fax no.:
(▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to it at the address set forth in Schedule II
hereto.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
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14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. 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.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. 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.
"Borrowing Effective Date" shall mean each date and time that the
Borrowing Registration Statement, any post-effective amendment or
amendments thereto and any Rule 462(b) Registration Statement relating
thereto became or shall become effective.
"Borrowing Preliminary Prospectus" shall mean any preliminary
prospectus with respect to the offering of the Borrowed Shares referred to
in paragraph 1A(c) above and any preliminary prospectus included in the
Borrowing Registration Statement at the Borrowing Effective Date
that omits Rule 430A Information.
"Borrowing Prospectus" shall mean the prospectus relating to the
Borrowed Shares that is first filed pursuant to Rule 424(b) after the
Execution Time or, if not filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Borrowed Shares
included in the Borrowing Registration Statement at the Borrowing
Effective Date.
"Borrowing Registration Statement" shall mean the registration
statement referred to in paragraph 1A(c) above, including exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or any
Rule 462(b) Registration Statement becomes effective at any time or from
time to time, shall also mean such registration statement as so amended or
such Rule 462(b) Registration Statement, as the case may be. Such term
shall include any Rule 430A Information deemed to be included therein at
the Borrowing Effective Date as provided by Rule 430A.
"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 or London.
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"Effective Date" shall mean each date and time that the Offering
Registration Statement, any post-effective amendment or amendments thereto
and any Rule 462(b) Registration Statement relating thereto became or
shall become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Material Adverse Effect" shall mean a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole, whether
or not arising in the ordinary course of business.
"Offering International Preliminary Prospectus" shall have the
meaning set forth under Offering U.S. Preliminary Prospectus".
" Offering Preliminary Prospectus" shall have the meaning set
forth under "Offering U.S. Preliminary Prospectus".
"Offering Registration Statement" shall mean the registration
statement referred to in paragraph 1A(a) above, including the exhibits
thereto and the financial statements included therein, as amended at the
Execution Time (or, if not effective at the Execution Time, in the form in
which it shall become effective) and, in the event any post-effective
amendment thereto or any Rule 462(b) Registration Statement becomes
effective prior to the Closing Date (as hereinafter defined), shall also
mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective Date
as provided by Rule 430A.
"Offering U.S. Preliminary Prospectus" and the "Offering
International Preliminary Prospectus", respectively, shall mean any
preliminary prospectus with respect to the offering of the U.S. Securities
and the International Securities, as the case may be, referred to in
paragraph 1A(a) above and any preliminary prospectus with respect to the
offering of the U.S. Securities and the International Securities, as the
case may be, included in the Offering Registration Statement at the
Effective Date that omits Rule 430A Information; and the Offering U.S.
Preliminary Prospectus and the Offering International Preliminary
Prospectus are hereinafter collectively called the "Offering Preliminary
Prospectuses".
"Preliminary Prospectuses" shall mean, collectively, the Offering
Preliminary Prospectuses and the Borrowing Preliminary Prospectus.
"Prospectuses" shall mean, collectively, the Offering
Prospectuses and the Borrowing Prospectus.
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"Registration Statements" shall mean, collectively, the Offering
Registration Statement and the Borrowing Registration Statement.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities or the Borrowed Shares, as the case may be, and the offering
thereof permitted to be omitted from the Offering Registration Statement
or the Borrowing Registration Statement, as the case may be, when it
becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the initial Registration Statement or
the initial Borrowing Registration Statement, as the case may be.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended.
"United States or Canadian Person" shall mean any person who is a
national or resident of the United States or Canada, any corporation,
partnership or other entity created or organized in or under the laws of
the United States or Canada or of any political subdivision thereof, or
any estate or trust the income of which is subject to United States or
Canadian Federal income taxation, regardless of its source (other than any
non-United States or non-Canadian branch of any United States or Canadian
Person), and shall include any United States or Canadian branch of a
person other than a United States or Canadian Person. "U.S." or "United
States" shall mean the United States of America (including the states
thereof and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction.
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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, the Selling Stockholders and the several U.S. Underwriters.
Very truly yours,
Amkor Technology, Inc.
By: ____________________________
Name:
Title:
▇▇▇▇▇ ▇. ▇▇▇
____________________________
[Selling Stockholder]
By: ____________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ & Company
By: ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By:___________________________
Name:
Title:
For themselves and the other several U.S. Underwriters
named in Schedule I to the foregoing Agreement.
40
41
SCHEDULE I
Number of Shares
of U.S. Principal Amount
Underwritten of U.S.
Shares to Be Underwritten Notes
U.S. Underwriter Purchased to Be Purchased
---------------- ---------------- ------------------
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. .................. $
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ..... $
▇▇▇▇▇ & Company..................... $
[Other U.S. Underwriters]........... $
---------------- ------------------
Total.......................... $
================ ==================
I-1
42
SCHEDULE II
Selling Stockholders Number of Shares
-------------------- ----------------
Address
[Address for notice]
II-1
43
SCHEDULE III
List of Officers, Directors and Shareholders
(other than Selling Stockholders)
III-1
44
EXHIBIT A
[LETTERHEAD OF OFFICER, DIRECTOR, STOCKHOLDER OR SHAREHOLDER OF
AMKOR TECHNOLOGY, INC.]
Amkor Technology, Inc.
Public Offering of Common Stock and Convertible Notes
_______________, 1998
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ & Company
as U.S. Representatives of the several U.S. Underwriters
c/o ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ International Limited
▇▇▇▇▇ International L.P.
as International Representatives of the several International Underwriters
c/o ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with (i) the
proposed U.S. Underwriting Agreement (the "U.S. Underwriting Agreement") among
Amkor Technology, Inc., a Delaware corporation (the "Company"), certain selling
stockholders of the Company and a group of U.S. Underwriters named therein and
(ii) the proposed International Underwriting Agreement (the "International
Underwriting Agreement") among the Company, certain selling stockholders of the
Company and a group of International Underwriters named therein, relating to an
underwritten public offering of Common Stock, $.001 par value (the "Common
Stock"), of the Company, and the Company's ____% Convertible Subordinated Notes
due 2003.
In order to induce you and the other U.S. Underwriters and
International Underwriters to enter into the U.S. Underwriting Agreement and the
International Underwriting Agreement, the undersigned will not, without the
prior written consent of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.,
A-1
45
offer, sell, contract to sell, pledge or otherwise dispose of, or file a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, with respect to, any shares of Common Stock of
the Company or any securities convertible into or exercisable or exchangeable
for shares of Common Stock, or publicly announce an intention to effect any such
transaction, for a period of 180 days after the date of the U.S. Underwriting
Agreement and the International Underwriting Agreement, other than (i) upon the
exercise of any option or warrant, or the conversion of a security, outstanding
on the date of the U.S. Underwriting Agreement and the International
Underwriting Agreement and referred to in the Offering Prospectuses (as defined
in the U.S. Underwriting Agreement and the International Underwriting Agreement)
and (ii) shares of Common Stock disposed of as bona fide gifts approved by ▇▇▇▇▇
▇▇▇▇▇▇ Inc.
If for any reason the U.S. Underwriting Agreement and the
International Underwriting Agreement shall be terminated prior to the Closing
Date (as defined in the U.S. Underwriting Agreement and the International
Underwriting Agreement), the agreement set forth above shall likewise be
terminated.
Very truly yours,
_______________________________________
Signature
_______________________________________
Print Name
_______________________________________
Address
_______________________________________
A-2
