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EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement"), dated as of
April 14, 1998 by and among Amkor Technology, Inc., a Delaware corporation
("ATI"), Amkor Electronics, Inc., a Pennsylvania corporation ("AEI"), and the
stockholders of AEI as set forth on Exhibit A hereto (the "AEI Stockholders").
PREAMBLE
The Board of Directors of ATI and AEI have each determined that it is in
the best interests of both companies for AEI to be merged with and into ATI (the
"Merger") upon the terms and subject to the conditions set forth herein.
Accordingly, in consideration of the premises and the mutual covenants,
representations and warranties herein contained, the parties hereto agree as
follows:
ARTICLE I
THE MERGER
SECTION 1.1. The Merger. At the Effective Time (as defined in Section 1.2)
and subject to the terms and conditions contained herein, AEI shall be merged
with and into ATI (AEI and ATI constituting together the "Constituent
Corporations"), in accordance with the General Corporation Law of the State of
Delaware (the "DGCL") and the Pennsylvania Business Corporation Law ("PBCL"),
and the separate existence of AEI shall thereupon cease, and ATI shall be the
surviving corporation in the Merger (the "Surviving Corporation").
SECTION 1.2. Closing; Effective Time. As promptly as practicable after
satisfaction or waiver of the applicable conditions set forth in Article IV
hereof, the parties hereto will cause an appropriate certificate of merger (the
"Certificate of Merger") and related documents, in such form or forms as may be
required by, and executed in accordance with, the relevant provisions of the
DGCL and the PBCL, to be filed with the Secretary of State of the State of
Delaware and the Secretary of State of Pennsylvania. The filing of the
Certificate of Merger is hereinafter referred to as the "Closing." The Merger
shall become effective at the time that the Certificate of Merger is duly filed
with the Secretary of State of the States of Delaware and Pennsylvania or at
such other time as is expressly set forth in the Certificate of Merger (the
"Effective Time"), in accordance with the applicable provisions of the DGCL and
PBCL.
SECTION 1.3. Effect of Merger. At the Effective Time, the effect of the
Merger shall be as provided in the applicable provisions of the DGCL and the
PBCL. Without limiting the generality of the foregoing, and subject thereto, at
the Effective Time, all the property, rights, privileges, powers and
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franchises of AEI shall vest in the Surviving Corporation, and all debts,
liabilities and duties of AEI shall become the debts, liabilities and duties of
the Surviving Corporation. The Certificate of Incorporation and the Bylaws of
ATI in effect immediately prior to the Effective Time shall be the Certificate
of Incorporation and Bylaws of the Surviving Corporation. The directors of ATI
immediately prior to the Effective Time shall be the directors of the Surviving
corporation, and the officers of ATI immediately prior to the Effective Time
shall be the officers of the Surviving Corporation, in each case until their
respective successors are duly elected or appointed and qualified.
SECTION 1.4. Further Action. If, at any time after the Effective Time, any
further action is necessary or desirable to carry out the purposes of this
Agreement and to vest the Surviving Corporation with full right, title and
possession to all properties, rights, privileges, immunities, powers and
franchises of either of the Constituent Corporations, the officers of the
Surviving Corporation are fully authorized in the name of each Constituent
Corporation or otherwise to take, and shall take, all such lawful and necessary
action.
SECTION 1.5. Conversion of Shares. At the Effective Time, by virtue of the
Merger and without any action on the part of AEI, ATI or any holder of any
shares of common stock of AEI, par value $.01 per share (the "AEI Shares"), each
AEI Share issued and outstanding immediately prior to the Effective Time shall
be converted into 32.48922 shares (the "Exchange Ratio") of common stock of ATI,
par value $0.001 ("ATI Shares").
SECTION 1.6. Exchange of Certificates. At the Effective Time, each
certificate representing AEI Shares shall be canceled and become exchangeable
for a certificate representing the number of ATI Shares equal to the number of
AEI Shares set forth on the canceled AEI certificate multiplied by the Exchange
Ratio.
SECTION 1.7. No Fractional Shares. No fraction of a share of ATI Shares
will be issued. In lieu thereof, the number of ATI Shares issuable to each
holder of shares of AEI Shares who would otherwise be entitled to a fraction of
a share of ATI Shares (after aggregating all fractional shares of ATI Shares to
be received by such holder of AEI Shares) shall be rounded down to the nearest
whole share number, and ATI shall pay to such holder the cash amount equal to
such fractional share multiplied by the fair market value of one share of Common
Stock as determined by the Board of Directors of ATI.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF AEI AND AEI STOCKHOLDERS
AEI and the AEI Stockholders, jointly and severally, represent and warrant
to ATI as follows:
SECTION 2.1. Organization. AEI and each of its subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has the requisite corporate power
and authority to own its properties and carry on its business as it is now being
conducted.
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SECTION 2.2. Authority Relative to this Agreement.
(a) AEI and each AEI Stockholder have the requisite corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized, to the extent and if required, by the boards of directors and
stockholders of AEI, and no other corporate proceedings on the part of AEI is
necessary to authorize this Agreement and the transactions contemplated hereby.
This Agreement has been duly executed and delivered by AEI and each AEI
Stockholder and constitutes a valid and binding obligation of AEI and each AEI
Stockholder, enforceable against it in accordance with its terms, except that
such enforceability may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting or relating to enforcement of creditors' rights
generally and is subject to general principles of equity.
(b) No consent, approval, authorization or order of any court or
government al agency or body is required for the consummation by AEI or any AEI
Stockholder of the transactions contemplated herein, except such approvals as
have been obtained.
(c) The consummation of any of the transactions contemplated herein
will not 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 AEI or any AEI Stockholder is a party or bound, or any
judgment, order or decree applicable to AEI or any AEI Stockholder of any court,
regulatory body, administrative agency, governmental body or arbitrator having
jurisdiction over AEI or any AEI Stockholder.
SECTION 2.3. Capitalization.
(a) The authorized capital stock of AEI consists of 500,000 AEI
Shares. As of the date hereof, (i) 450,000 AEI Shares are issued and
outstanding, all of which are validly issued, fully paid and nonassessable and
not subject to preemptive rights and (ii) no AEI Shares are held in AEI's
treasury. Except as set forth in this Section 2.3, there are no shares of
capital stock of AEI authorized, issued or outstanding and there are no
outstanding subscriptions, options, warrants, rights, stock-based or
stock-related awards or convertible or exchangeable securities issued by AEI, or
other agreements or commitments of any character to which the AEI is a party,
relating to the issued or unissued capital stock or other securities of AEI,
including, without limitation, any agreement or commitment obligating AEI to
issue, delver or sell, or cause to be issued, delivered or sold, or to make any
payments based upon the value of, shares of capital stock or other securities of
AEI or obligating AEI to grant, extend or enter into any subscription, option,
warrant, right, stock-based or stock-related plan or arrangement or convertible
or exchangeable security or other similar agreement or commitment (including,
without limitation, to any current or former employee or director of AEI). There
are no outstanding obligations of AEI or any of its subsidiaries to repurchase,
redeem or otherwise acquire any such capital stock or security. There are no
voting trusts, proxies or other agreements or understandings, with respect to
the voting of capital stock of AEI or any of its subsidiaries, to which AEI or
any of its subsidiaries is a party.
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(b) AEI is, directly or indirectly, the record and beneficial owner
of all of the outstanding shares of capital stock of, or all of the partnership
interests in, each of its subsidiaries. All of the outstanding shares of capital
stock of each subsidiary of AEI which is a corporation are validly issued, fully
paid and nonassessable and not subject to preemptive rights, and all shares of
capital stock or partnership interests of each subsidiary of AEI are owned by
AEI or a subsidiary thereof free and clear of all liens, options, claims or
encumbrances (including, without limitation, rights of first refusal or similar
rights) with respect to the ownership thereof. There are no outstanding
subscriptions, options, warrants, rights or convertible or exchangeable
securities issued by AEI or any subsidiary of AEI, or other agreements or
commitments of any character to which AEI or any subsidiary of AEI is a party,
relating to the issued or unissued capital stock or other securities or
partnership interests of any subsidiary of AEI, including, without limitation,
any agreement or commitment obligating AEI or any such subsidiary to issue,
deliver or sell, or cause to be issued, delivered or sell, or to make any
payments based upon the value of, shares of capital stock or other securities or
partnership interests of any such subsidiary, or obligating AEI or any such
subsidiary to grant, extend or enter into any subscription, option, warrant,
right, or convertible or exchangeable security or other similar agreement or
commitment.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ATI
ATI represents and warrants to AEI as follows:
SECTION 3.1. Organization and Qualification. ATI and each of its
subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has the
requisite corporate power and authority to own its properties and carry on its
business as it is now being conducted.
SECTION 3.2. Authority Relative to this Agreement. ATI has the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized, to the extent and if required, by the boards of directors
and stockholders of ATI, and no other corporate proceedings on the part of ATI
is necessary to authorize this Agreement and the transactions contemplated
hereby. This Agreement has been duly executed and delivered by ATI and
constitutes a valid and binding obligation of ATI, enforceable against it in
accordance with its terms, except that such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting or relating
to enforcement of creditors' rights generally and is subject to general
principles of equity.
SECTION 3.3. Capitalization.
3.3.1 The authorized capital stock of ATI consists of
500,000,000 ATI Shares and 10,000,000 shares of preferred stock, par value $.001
per share (the "ATI Preferred Shares"). As
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of the date hereof, (i) nine ATI Shares are issued and outstanding, (ii) no ATI
Preferred Shares are outstanding, and (iii) no ATI Shares are held in ATI's
treasury. Except as set forth in this Section 3.3 or the Registration Statement
on Form S-1 (No. 333-37235) (the "Registration Statement") filed by ATI with the
Securities and Exchange Commission relating to the initial public offering by
ATI, there are no shares of capital stock of ATI authorized, issued or
outstanding and there are no outstanding subscriptions, options, warrants,
rights, stock-based or stock-related awards or convertible or exchangeable
securities issued by ATI, or other agreements or commitments of any character to
which the ATI is a party, relating to the issued or unissued capital stock or
other securities of ATI, including, without limitation, any agreement or
commitment obligating ATI to issue, deliver or sell, or cause to be issued,
delivered or sold, or to make any payments based upon the value of, shares of
capital stock or other securities of ATI or obligating ATI to grant, extend or
enter into any subscription, option, warrant, right, stock-based or
stock-related plan or arrangement or convertible or exchangeable security or
other similar agreement or commitment (including, without limitation, to any
current or former employee or director of ATI). There are no outstanding
obligations of ATI or any of its subsidiaries to repurchase, redeem or otherwise
acquire any such capital stock or security. There are no voting trusts, proxies
or other agreements or understandings, with respect to the voting of capital
stock of ATI or any of its subsidiaries, to which ATI or any of its subsidiaries
is a party.
3.3.2 The ATI Shares to be issued pursuant to the Merger will
be duly authorized, validly issued, fully paid and nonassessable and will not be
issued in violation of or subject to any preemptive or other rights to subscribe
for or to purchase such securities created by the Certificate of Incorporation
or Bylaws of ATI or any agreement to which ATI is a party or by which it is
bound.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF AEI STOCKHOLDERS
The AEI Stockholders, jointly and severally, represent and warrant
to ATI that each AEI Stockholder has valid marketable title to the shares (the
"Shares") of AEI indicated next to such AEI Stockholder's name on Exhibit A,
free and clear of any pledge, lien, security interest, encumbrance, claim or
equitable interest.
ARTICLE V
CONDITIONS
SECTION 5.1. Conditions to the Obligations of AEI and ATI. The obligations
of AEI and ATI to consummate the Merger are subject to the satisfaction, at or
before the Effective Time, of each of the following conditions:
5.1.1 The stockholders of each of ATI and AEI shall have duly
approved this Agreement and the Merger in accordance with the applicable
provisions of DGCL and PBCL and their respective Articles of Incorporation and
Bylaws.
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5.1.2 The consummation of the Merger shall not be prohibited
by any applicable statute, rule or regulation or any order, decree or injunction
of a court of competent jurisdiction.
5.1.3 The Board of Directors of ATI, in its sole discretion,
shall have approved the consummation of the Merger.
ARTICLE VI
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNITY
SECTION 6.1. Survival of Representations and Warranties. All of the
representations and warranties of AEI and the AEI Stockholders in this Agreement
or in any instrument delivered pursuant to this Agreement shall survive the
Merger and continue until 5:00 p.m., Pennsylvania time, on the date which is
eighteen (18) months following the Closing Date (the "Expiration Date").
SECTION 6.2. Indemnification for Representations and Warranties. Each of
the AEI Stockholders (such persons being hereinafter referred to collectively as
the "Indemnifying Parties" and individually as an "Indemnifying Party") hereby
covenant and agree, severally and jointly, to indemnify, defend and hold
harmless ATI and the directors, officers, AEI Stockholders and other affiliates
(in each case, other than the AEI Stockholders) of ATI (such persons being
hereinafter referred to collectively as the "Indemnified Parties" and
individually as an "Indemnified Party"), from and against, and pay or reimburse
each of the Indemnified Parties for, any liabilities, obligations, losses,
claims, royalties, fines, deficiencies, damages, costs or expenses (whether
absolute, accrued or otherwise and whether or not resulting from third party
claims), including any interest and penalties with respect thereto and
reasonable out-of-pocket expenses and reasonable attorneys' fees and expenses
incurred in the investigation or defense of any of the same (individually and
collectively, "Losses"), arising out of or resulting from (i) any inaccuracy in
or breach of a representation or warranty of AEI or the AEI Stockholders
contained in this Agreement.
SECTION 6.3. Indemnification Procedure. All claims for indemnification
under this Agreement (individually, a "Claim" and collectively, "Claims") shall
be asserted and resolved as follows:
6.3.1 In the event that any Claim for which an Indemnifying Party
could be liable to an Indemnified Party hereunder is asserted against an
Indemnified Party, the Indemnified Party shall notify the Indemnifying Party of
such Claim, specifying the nature of such Claim and the amount or the estimated
amount thereof to the extent then feasible (which estimate shall not be used as
evidence with respect to, nor shall it be conclusive of, the final amount of
such Claim) (the "Claim Notice"). The Indemnifying Party shall have 30 days from
the date of the Claim Notice (the "Notice Period") to notify the Indemnified
Party whether or not the Indemnifying Party disputes the Indemnifying Party's
liability to the Indemnified Party hereunder with respect to such Claim. If the
Indemnifying Party does not notify the Indemnified Party within 30 days from the
date of such Claim Notice that the Indemnifying Party disputes such Claim, the
amount of such Claim shall be conclusively deemed a liability of the
Indemnifying Party hereunder. The Indemnified Party shall have the right, at the
cost and expense of
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the Indemnifying Party, to defend by appropriate proceedings, which proceedings
shall be diligently settled or prosecuted by the Indemnified Party to a final
conclusion; provided that the Indemnifying Party shall have the right to approve
of the selection of counsel for the Indemnified Party, which approval shall not
unreasonably be withheld; and provided further that, unless the Indemnifying
Party otherwise consents in writing, which consent shall not be unreasonably
withheld, any monetary settlement by the Indemnified Party shall not be
conclusive of the amount of any indemnification obligation hereunder. The
Indemnified Party shall be entitled to recover from the Indemnifying Party the
amount of any settlement effected in accordance with the immediately preceding
sentence or any judgment and, on an ongoing basis, all indemnifiable costs and
expenses of the Indemnified Party with respect thereto, including interest from
the date such costs and expenses were incurred.
6.3.2 The Indemnified Party's failure to give reasonably prompt
notice to the Indemnifying Party of any actual, threatened or possible claim or
demand that may give rise to a right of indemnification hereunder shall not
relieve the Indemnifying Party of any liability which the Indemnifying Party may
have to the Indemnified Party unless the failure to give such notice materially
and adversely prejudiced the Indemnifying Party.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Termination. This Agreement may be terminated and the Merger
contemplated hereby may be abandoned at any time prior to the Effective Time
upon written or oral notice of such by either ATI or AEI, whether prior to or
after approval by the stockholders of either ATI or AEI.
SECTION 7.2. Effect of Termination. The representations, warranties and
agreements in this Agreement shall terminate upon the termination of this
Agreement pursuant to this Section 7, but in the event the Merger is
consummated, they shall survive the Effective Time.
SECTION 7.3. Waiver and Amendment. Any provision of this Agreement may be
waived at any time by the party which is, or whose stockholders are, entitled to
the benefits thereof. No waiver, amendment or supplement shall be effective
unless in writing and signed by the party or parties sought to be bound thereby.
SECTION 7.4. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the Merger and the other
transactions contemplated hereby, and this Agreement supersedes all prior
agreements among the parties with respect to these matters.
SECTION 7.5. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without giving
effect to the conflicts of law principles thereof.
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SECTION 7.6. Interpretation and Certain Defined Terms.
(a) When a reference is made in this Agreement to subsidiaries of a
Person, the word "subsidiaries" means any corporation more than 50 percent of
whose outstanding voting securities, or any partnership, joint venture or other
entity more than 50 percent of whose total equity interest, is directly or
indirectly owned by such Person. For purposes of this Agreement, ATI shall not
be deemed to be an affiliate or subsidiary of AEI.
(b) "Person" means and includes an individual, a partnership, a
joint venture, a corporation or trust, an unincorporated organization, a group
or a government or other department or agency thereof.
SECTION 7.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute but one agreement.
SECTION 7.8. Severability. Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
SECTION 7.9. Parties in Interest; Assignment. This Agreement is binding
upon and is solely for the benefit of the parties hereto and their respective
successors and permitted assigns, it being understood that all rights of AEI
hereunder shall accrue to the Surviving Corporation.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
Plan of Reorganization as of the date first above written.
AMKOR TECHNOLOGY, INC. AMKOR ELECTRONICS, INC.
By: /S/ XXXXX X. XXX By: /S/ XXXXX X. XXX
------------------------------------- -------------------------------------
Xxxxx X. Xxx, Chief Executive Officer Xxxxx X. Xxx, Chief Executive Officer
AEI STOCKHOLDERS
/S/ XXXXX X. XXX
--------------------------------------
Xxxxx X. Xxx
Xxxx X. Xxx Trust of December 31, 1987
/S/ XXXXX X. XXXXXXXXX, Attorney-in-fact
--------------------------------------
for Xxxx X. Xxx, Trustee
Name (print): Xxxxx X. Xxxxxxxxx
------------------------
Xxxxx X. Xxx Trust of December 31, 1987
/S/ XXXXX X. XXXXXXXXX, Attorney-in-fact
--------------------------------------
for Xxxxx X. Xxx, Trustee
Name (print): Xxxxx X. Xxxxxxxxx
------------------------
Xxxxx X. Xxx Trust of December 31, 1987
/S/ XXXXX X. XXXXXXXXX, Attorney-in-fact
--------------------------------------
for Xxxxx X. Xxx, Trustee
Name (print): Xxxxx X. Xxxxxxxxx
------------------------
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Exhibit A
AEI STOCKHOLDERS
NAME AEI SHARES HELD ATI SHARES TO BE
---- --------------- ----------------
RECEIVED
--------
Xxxxx X. Xxx 300,000 9,746,760
Xxxx X. Xxx Trust of December 31, 1987 50,000 1,624,460
Xxxxx X. Xxx Trust of December 31, 1987 50,000 1,624,460
Xxxxx X. Xxx Trust of December 31, 1987 50,000 1,624,460
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AGREEMENT AND PLAN OF REORGANIZATION
Dated as of April 14, 1998
BY AND AMONG
AMKOR ELECTRONICS, INC.
a Pennsylvania corporation
AMKOR TECHNOLOGY, INC.
a Delaware corporation
AND
CERTAIN STOCKHOLDERS OF AMKOR ELECTRONICS, INC.
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TABLE OF CONTENTS
ARTICLE I THE MERGER...........................................................1
SECTION 1.1. The Merger..................................................1
SECTION 1.2. Closing; Effective Time.....................................1
SECTION 1.3. Effect of Merger............................................2
SECTION 1.4. Further Action..............................................2
SECTION 1.5. Conversion of Shares........................................2
SECTION 1.6. Exchange of Certificates....................................2
SECTION 1.7. No Fractional Shares........................................2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF AEI AND
AEI STOCKHOLDERS ...............................................................2
SECTION 2.1. Organization................................................3
SECTION 2.2. Authority Relative to this Agreement........................3
SECTION 2.3. Capitalization..............................................3
ARTICLE III REPRESENTATIONS AND WARRANTIES OF ATI..............................4
SECTION 3.1. Organization and Qualification..............................4
SECTION 3.2. Authority Relative to this Agreement........................4
SECTION 3.3. Capitalization..............................................5
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF AEI STOCKHOLDERS .................5
ARTICLE V CONDITIONS...........................................................5
SECTION 5.1. Conditions to the Obligations of AEI and ATI................5
ARTICLE VI SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNITY...............6
SECTION 6.1. Survival of Representations and Warranties..................6
SECTION 6.2. Indemnification for Representations and Warranties...........6
SECTION 6.3. Indemnification Procedure...................................6
ARTICLE VII MISCELLANEOUS......................................................7
SECTION 7.1. Termination.................................................7
SECTION 7.2. Effect of Termination.......................................7
SECTION 7.3. Waiver and Amendment........................................7
SECTION 7.4. Entire Agreement............................................7
SECTION 7.5. Applicable Law..............................................8
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SECTION 7.6. Interpretation and Certain Defined Terms....................8
SECTION 7.7. Counterparts................................................8
SECTION 7.8. Severability................................................8
SECTION 7.9. Parties in Interest; Assignment.............................8
