<PAGE>
Exhibit 10.53
NOTE PURCHASE AGREEMENT
BETWEEN
AMKOR TECHNOLOGY, INC.
AND
The Investors Named Herein
November 14, 2005
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S>
<C>
SECTION 1.
DEFINITIONS...................................................
1
1.1.
Certain
Defined Terms; Interpretation......................... 1
SECTION 2. AGREEMENT TO PURCHASE AND SELL
SECURITIES..................... 3
2.1.
Agreement
to Purchase and Sell Securities..................... 3
2.2.
The
Closing...................................................
3
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE
COMPANY................. 3
3.1.
Organization Good Standing and Qualification..................
3
3.2.
Capitalization................................................
4
3.3.
Due
Authorization.............................................
4
3.4.
Valid
Issuance................................................
4
3.5.
Compliance
with Securities Laws............................... 5
3.6.
Governmental Consents.........................................
5
3.7.
Non-Contravention.............................................
5
3.8.
Litigation....................................................
5
3.9.
Compliance
with Law and Charter Documents..................... 6
3.10.
SEC
Documents.................................................
6
SECTION 4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF
INVESTORS....... 7
4.1.
Investigation; Economic Risk..................................
7
4.2.
Purchase
for Own Account...................................... 8
4.3.
Exempt
from Registration; Restricted Securities...............
8
4.4.
Accredited
Investors.......................................... 8
4.5.
Legends.......................................................
8
4.6.
Due
Authorization.............................................
9
4.7. Governmental
Consents......................................... 9
4.8.
Non-Contravention.............................................
9
SECTION 5. AFFIRMATIVE COVENANTS OF THE
COMPANY.......................... 9
5.1.
Listing of
Shares............................................. 9
5.2.
Use of
Proceeds...............................................
10
5.3.
Expenses......................................................
10
SECTION 6. CLOSING
CONDITIONS............................................ 10
6.1.
Conditions
to Each Investors' Obligations..................... 10
6.2.
Conditions
to the Company's Obligations....................... 12
SECTION 7.
MISCELLANEOUS.................................................
13
7.1.
Governing
Law................................................. 13
</TABLE>
-i-
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
----
<S>
<C>
7.2.
Successors
and Assigns........................................ 13
7.3.
Entire
Agreement..............................................
13
7.4.
Notices.......................................................
13
7.5.
Amendments....................................................
15
7.6.
Delays or
Omissions........................................... 15
7.7.
Legal
Fees....................................................
16
7.8.
Titles and
Subtitles.......................................... 16
7.9.
Counterparts..................................................
16
7.10.
Severability..................................................
16
7.11.
Dispute
Resolution............................................ 16
7.12.
No Third Parties
Benefited.................................... 16
7.13.
Meaning of
Include and Including.............................. 17
</TABLE>
-ii-
<PAGE>
NOTE PURCHASE AGREEMENT
This
Note Purchase Agreement (this "Agreement") is entered into as
of
November 14, 2005 by and between Amkor Technology, Inc., a Delaware
corporation
(the "Company" or the "Corporation") and the investors named on
Schedule 1
hereto (each an "Investor" and collectively, the "Investors").
WHEREAS, Investors are willing, pursuant to the terms and
conditions of
this Agreement, to purchase from the Company an aggregate principal
amount of
$100,000,000 of Notes (as defined below) convertible into shares of
the
Company's Common Stock, par value $0.001 per share (the "Common
Stock");
WHEREAS, at the closing of the transactions contemplated hereby,
the
Company and Investors will enter into the Investors Rights
Agreement and the
Voting Agreement (each as defined below), and the Company and the
Trustee will
enter into the Indenture (as defined below).
NOW,
THEREFORE, the parties hereby agree as follows:
SECTION 1.
DEFINITIONS
1.1.
Certain Defined Terms; Interpretation. The following terms shall
have
the following respective meanings.
"Affiliate" shall mean, with respect to any Person, any Person
directly or
indirectly controlling, controlled by, or under common control
with, such other
Person. For purposes of this definition, "control" when used with
respect to any
Person, means the possession, directly or indirectly, of the power
to direct or
cause the direction of the management and policies of such Person,
whether
through the ownership of voting securities, by contract or
otherwise; the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Business Day" shall mean any day on which commercial banks are
not
authorized or required to close in New York, New York.
"Common Stock" shall have the meaning set forth in the recitals to
this
Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended,
and the rules and regulations promulgated thereunder, all as the
same shall be
in effect from time to time.
"Indenture" shall mean the Indenture, dated as of November 18,
2005,
between the Company and the Trustee thereunder, pursuant to which
the Notes are
being issued, as amended, modified or supplemented from time to
time in
accordance with the terms thereof.
<PAGE>
"Investors Rights Agreement" shall mean the Investors Rights
Agreement,
dated as of the date hereof, between the Company and Investors.
"Nasdaq" shall mean the Nasdaq National Market.
"Notes" shall mean the 6 1/4% Convertible Subordinated Notes due
2013
issued by the Company pursuant to the Indenture.
"Person" shall mean individual, corporation, company, voluntary
association, partnership, joint venture, limited liability company,
trust,
estate, unincorporated organization, governmental authority or
other entity.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the
rules and regulations promulgated thereunder, all as the same shall
be in effect
from time to time.
"Subsidiary" shall mean each Person in which the Company owns,
directly or
indirectly, 50% or more of the voting interests or of which the
Company
otherwise has the right to direct the management.
"Transaction Documents" shall mean this Agreement, the Investors
Rights
Agreement, the Voting Agreement and the Indenture.
"Trustee" shall mean U.S. Bank National Association, as trustee
under the
Indenture.
"Voting Agreement" shall mean that Voting Agreement, dated as of
the date
hereof, between the Company and the Investors.
1.2
Index of Other Defined Terms. In addition to the terms defined
above,
the following terms shall have the respective meanings given
thereto in the
sections indicated below:
<TABLE>
<CAPTION>
Defined Term
Section
------------
-------
<S>
<C>
"Action"
3.8
"Agreement"
Preamble
"Audited Financial Statements"
3.10(b)
"Balance Sheet Date"
3.10(b)
"Closing"
2.2
"Common Stock"
Recitals
"Company"
Preamble
"Form 10-K"
3.10(a)
"Form 10-Q's"
3.10(a)
"GAAP"
3.10(b)
"HLHZ"
6.1(h)
"Holding Period Termination Date" 4.3
</TABLE>
-2-
<PAGE>
<TABLE>
<CAPTION>
Defined Term
Section
------------
-------
<S>
<C>
"Investors"
Preamble
"Material Adverse Effect"
3.1
"Purchase Price"
2.1
"SEC Documents"
3.10(a)
"Underlying Securities"
3.4(b)
</TABLE>
SECTION 2.
AGREEMENT TO PURCHASE AND SELL SECURITIES.
2.1.
Agreement to Purchase and Sell Securities. The Company hereby
agrees
to issue to each Investor at the Closing (as defined below) the
principal amount
of Notes set forth next to each Investor's name on Schedule I and
each Investor
agrees to purchase from the Company at the Closing, for an
aggregate purchase
price set forth next to each Investor's name on Schedule I
(together, "Purchase
Price"), the Notes.
2.2.
The Closing. The purchase and sale of the Notes shall take place
at
the offices of Wilson Sonsini Goodrich & Rosati, P.C., 650 Page
Mill Road, Palo
Alto, California 94304, at 10:00 a.m. California time, on November
18, 2005, or
at such other time and place as the Company and Investors mutually
agree upon
(which time and place is referred to in this Agreement as the
"Closing"). At the
Closing, the Company will deliver to each Investor a certificate
representing
the Notes being purchased by such Investor, against delivery to the
Company by
such Investor of the consideration set forth in Section 2.1 by wire
transfer of
immediately available funds to an account designated by the Company
at least two
Business Days prior to the Closing.
SECTION 3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The
Company hereby represents and warrants to each Investor that
the
statements in this Section 3 are true and correct, except as
disclosed in the
SEC Documents (as defined below):
3.1.
Organization Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing
under the laws
of the State of Delaware and has all corporate power and authority
required to
(a) carry on its business as presently conducted, and (b) enter
into the
Transaction Documents, to issue the Notes and the shares of Common
Stock
issuable upon conversion of the Notes pursuant to the Indenture and
to
consummate the transactions contemplated hereby and thereby. The
Company is
qualified to do business and is in good standing in each
jurisdiction in which
the failure to so qualify would have a Material Adverse Effect. As
used in this
Agreement, "Material Adverse Effect" means a material adverse
effect, or a group
of such effects which are related, on the business, operations,
condition
(financial or otherwise) or results of operations, of the
applicable party and
its Subsidiaries, taken as a whole.
-3-
<PAGE>
3.2.
Capitalization. The authorized capital stock of the Company
conforms
in all material respects to the description thereof in the SEC
Documents.
3.3.
Due Authorization. The Company has the requisite corporate power
and
authority to enter into the Transaction Documents and to perform
its obligations
hereunder and thereunder. The execution and delivery of the
Transaction
Documents and performance by the Company of its obligations
hereunder and
thereunder, including without limitation, the issuance of the
Notes, have been
duly authorized by all necessary corporate action on the part of
the Company
(including its directors and stockholders). The Transaction
Documents, when
executed and delivered by the parties thereto, will constitute,
valid and
legally binding obligations of the Company, enforceable against the
Company in
accordance with their respective terms, except (a) as may be
limited by (i)
applicable bankruptcy, insolvency, reorganization or others laws of
general
application relating to or affecting the enforcement of creditors'
rights
generally and (ii) the effect of rules of law governing the
availability of
equitable remedies and (b) as rights to indemnity or contribution
may be limited
under federal or state securities laws or by principles of public
policy
thereunder.
3.4.
Valid Issuance.
(a) Valid Issuance and Enforceability of Notes. The Notes have
been
duly authorized and, when executed and authenticated in accordance
with the
provisions of the Indenture and delivered to and paid for by the
Investors in
accordance with the terms of this Agreement, will be valid and
binding
obligations of the Company, enforceable in accordance with their
terms, subject
to applicable bankruptcy, insolvency or similar laws affecting
creditors' rights
generally and general principles of equity, and will be entitled to
the benefits
provided for in the Indenture.
(b) Valid Issuance of Common Stock. The Common Stock initially
issuable upon conversion of the Notes (the "Underlying Securities")
and reserved
for issuance upon conversion of the Notes has been duly authorized
and reserved
and, when issued upon conversion of the Notes in accordance with
the terms of
the Notes and the Indenture, will be validly issued, fully paid
and
non-assessable, and the issuance of the Underlying Securities will
not be
subject to any preemptive or similar rights.
3.5.
Compliance with Securities Laws. Assuming the accuracy of the
representations made by Investors in Section 4 hereof, the Notes
and the shares
of Common Stock issuable upon conversion of the Notes pursuant to
the Indenture
will be issued to Investors in compliance with applicable
exemptions from (i)
the registration and prospectus delivery requirements of the
Securities Act and
(ii) the registration and qualification requirements of all
applicable
securities laws of the states of the United States.
3.6.
Governmental Consents. No consent, approval, order or
authorization
of, or registration qualification, designation, declaration or
filing with, any
federal, state or local governmental authority on the part of the
Company is
required in connection with the consummation of the transactions
contemplated by
this Agreement, except: (i) the filing of a current report on Form
8-K by the
Company with the SEC following the Closing; (ii) the filing of
such
qualifications or
-4-
<PAGE>
filings under the Securities Act and the regulations thereunder and
all
applicable state securities laws as may be required in connection
with the
transactions contemplated by this Agreement; and (iii) as expressly
required or
contemplated by the terms of the Transaction Documents. All such
qualifications
and filings in connection with the issuance of the Notes have been
made or are
effective.
3.7.
Non-Contravention. The execution, delivery and performance of
the
Transaction Documents by the Company, and the consummation by the
Company of the
transactions contemplated hereby and thereby, do not and will not
(i) contravene
or conflict with the Certificate of Incorporation or Bylaws of the
Company, as
amended; (ii) constitute a violation of any provision of any
federal, state,
local or foreign law binding upon or applicable to the Company; or
(iii)
constitute a default or require any consent under, give rise to any
right of
termination, cancellation or acceleration of, or to a loss of any
benefit to
which the Company is entitled under, or result in the creation or
imposition of
any lien, claim or encumbrance on any assets of the Company under,
any material
contract to which the Company is a party or any permit, license or
similar right
relating to the Company or by which the Company may be bound,
except in the case
of clause (ii) and clause (iii) as, individually or in the
aggregate, would not
reasonably be expected to have a Material Adverse Effect.
3.8.
Litigation. There is no action, suit, proceeding, claim,
arbitration
or investigation ("Action") pending: (a) against the Company, its
properties or
assets or, to the best of the Company's knowledge, against any
officer, director
or employee of the Company in connection with such officer's,
director's or
employee's relationship with, or actions taken on behalf of, the
Company, which
the Company believes is reasonably likely to have a Material
Adverse Effect, or
(b) that seeks to prevent, enjoin, alter or delay the transactions
contemplated
by this Agreement. The Company is not a party to or subject to the
provisions of
any order, writ, injunction, judgment or decree of any court or
government
agency or instrumentality which it believes is reasonably likely to
have a
Material Adverse Effect. No Action by the Company is currently
pending nor does
the Company intend to initiate any Action which it believes is
reasonably likely
to have a Material Adverse Effect.
3.9.
Compliance with Law and Charter Documents. The Company is not
in
violation or default of any provisions of its Certificate of
Incorporation or
Bylaws, both as amended. The Company has complied and is in
compliance with all
applicable statutes, laws, and regulations and executive orders of
the United
States of America and all states, foreign countries and other
governmental
bodies and agencies having jurisdiction over the Company's
business, assets or
properties, except for any violations that would not, either
individually or in
the aggregate, have a Material Adverse Effect.
3.10. SEC Documents.
(a) Reports. The Company has filed all required forms, reports
and
documents with the SEC since December 31, 2004. The Company has
furnished or
made available to Investors prior to the date hereof copies of its
Annual Report
on Form 10-K for the fiscal year ended
-5-
<PAGE>
December 31, 2004 ("Form 10-K"), its Quarterly Reports on Form 10-Q
for the
fiscal quarters ended March 31, 2005, June 30, 2005 and September
30, 2005 (the
"Form 10-Q's"), and all other registration statements, reports and
proxy
statements filed by the Company with the SEC on or after December
31, 2004 (the
Form 10-K, the Form 10-Q's and such registration statements,
reports and proxy
statements are collectively referred to herein as the "SEC
Documents"). Each of
the SEC Documents, as of the respective date thereof (or if amended
or
superseded by a filing prior to the closing date of this Agreement,
then on the
date of such filing), did not, and each of the registration
statements, reports
and proxy statements filed by the Company with the SEC after the
date hereof and
prior to the Closing will not, as of the date thereof (or if
amended or
superseded by a filing prior to the date of this Agreement, then on
the date of
such filing), contain any untrue statement of a material fact or
omit to state a
material fact necessary in order to make the statements made
therein, in light
of the circumstances under which they were made, not misleading.
The Company is
not a party to any material contract, agreement or other
arrangement which was
required to have been filed as an exhibit to the SEC Documents that
was not so
filed.
(b)
Financial Statements. The SEC Documents include the Company's
audited consolidated financial statements (the "Audited Financial
Statements")
for the fiscal year ended December 31, 2004 (the "Balance Sheet
Date"), and its
unaudited consolidated financial statements for the nine-month
period ended
September 30, 2005. The audited and unaudited consolidated
financial statements
of the Company included in the SEC Documents filed prior to the
date hereof
fairly present, in conformity with United States generally accepted
accounting
principles ("GAAP") (except as permitted by Form 10-Q) applied on a
consistent
basis (except as may be indicated in such financial statements or
the notes
thereto), the consolidated financial position of the Company and
its
consolidated Subsidiaries as at the dates thereof and the
consolidated results
of their operations and cash flows for the periods then ended
(subject to normal
year-end audit adjustments in the case of the unaudited interim
financial
statements contained in the Form 10-Qs, which adjustments are not
expected to be
material in amount).
(c) No Integration. Neither the Company nor any affiliate (as
defined
in Rule 501(b) of Regulation D under the Securities Act) of the
Company has
directly, or through any agent, (i) sold, offered for sale,
solicited offers to
buy or otherwise negotiated in respect of, any security (as defined
in the
Securities Act) which is or will be integrated with the sale of the
Notes in a
manner that would require the registration under the Securities Act
of the
Notes, (ii) engaged in any form of general solicitation or general
advertising
in connection with the offering of the Notes (as those terms are
used in
Regulation D under the Securities Act), or in any manner involving
a public
o
