AGREEMENT AND PLAN OF MERGER
Exhibit
2.1
This
AGREEMENT AND PLAN OF MERGER (“Agreement”) is entered into by and between WEBZEN
Inc. (“WEBZEN” or the “Surviving Corporation”) and NHN Games Co., Ltd. (“NHN
Games”) under following terms and conditions. The Merger (as defined below) is
intended to gain synergetic effect and enhance competitiveness by creating an
efficient development environment.
Article
1. MERGER. Upon the terms and subject to the conditions set forth in this
Agreement, and in accordance with Korean applicable law, NHN Games shall be
merged with and into WEBZEN, pursuant to which NHN Games will cease to exist and
Webzen will continue as the Surviving Corporation (the “Merger”).
Article
2. EXCHANGE RATIO AND NEWLY ISSUED SHARES.
(a)
WEBZEN will issue 20,129,627 shares of its common stock (“Webzen
Shares”). NHN Games’ shareholders of record as specified in the
shareholder list of NHN Games at the Effective Time (as defined below) will
receive 1.57262712 WEBZEN Shares for every share of NHN Games stock he or she
owns.
(b) The
par value of the newly issued Webzen Shares is Korean Won (“KRW”) 500 per
share.
(c) In
the event of any stock split, merger or capital reduction of WEBZEN after the
date of this Agreement, the number of shares as stated in this Agreement shall
be adjusted pro rata.
Article
3. CAPITAL AND CAPITAL RESERVE. The capital of the Surviving Corporation shall
increase by KRW 10,064,813,559 after the Merger. The capital reserve shall be
determined by the mutual consent after considering the capital level of NHN
Games at the Effective Time.
Article
4. BOARD OF DIRECTORS AND SHAREHOLDERS MEETING. Both WEBZEN and NHN Games will
convene their respective meetings of the Board of Directors on April 15, 2010 to
vote on the Agreement and other matters related to the Merger, and make plans to
convene their respective shareholders meeting, as required by applicable law, to
approve the Merger. The date of such Board of Directors meetings and
shareholders meetings can be changed by mutual consent if deemed necessary
during the course of the Merger.
Article
5. EFFECTIVE TIME OF THE MERGER. Subject to the terms and conditions of this
Agreement, the Merger shall become effective on July 01, 2010 (the “Effective
Time”). The Effective Time can be changed by mutual consent if deemed necessary
during the course of the Merger.
Article
6. ASSUMPTION OF ASSET AND LIABILITIES. At the Effective Time of the Merger, NHN
Games shall transfer all of its assets and liabilities, and rights and
obligations thereto, to the Surviving Corporation, such assets and liabilities
to be based on the list of properties, balance sheet and other financial
documents as of April 15, 2010.
Article
7. GOVERNMENT SUBSIDIZED PROJECTS. NHN Games shall inform WEBZEN of its
involvement in any development projects subsidized by the Korean government as
of and up till April 15, 2010 and WEBZEN shall assume all rights and obligations
thereto from NHN Games. If there are any changes to such projects,
NHN Games shall provide WEBZEN with detail regarding such changes, if any, from
April 15, 2010 to the Effective Time for verification by WEBZEN.
Article
8. DUTY OF CARE OF A GOOD MANAGER.
From the
date of this Agreement to the Effective Time, each party shall, with the duty of
care as a good manager, perform their respective obligations, manage and operate
all properties, and consult with each other and mutually consent on any
transaction that may materially impact such obligations and properties. No
changes in capital is permitted from the date of this Agreement to the Effective
Time.
Article
9. RECORD DATE OF DIVIDEND PAYOUT. The record date for the purpose of
calculating the dividend amount for the shares newly issued pursuant to Article
2 shall be the Effective Time.
Article
10. EMPLOYEES. WEBZEN shall assume and be responsible for all employees of NHN
Games as of the Effective Time. Each employee’s time of service (as calculated
by NHN Games) at NHN Games shall be honored with other related details to be
determined by mutual agreement hereafter. All rights and obligations of the
stock incentive plan of NHN Games (the “NHN Games Stock Incentive Plan”) shall
adhere to the Article of Incorporation and any stock incentive plan related
filings of WEBZEN and all provisions of any contracts between participants in
the NHN Games Incentive Plan and NHN Games shall be deemed to have been revised
to conform to the Article of Incorporation and any stock incentive plan related
filings of WEBZEN.
Article
11. DIRECTORS AND MANAGEMENT. The new directors and members of audit committee
of WEBZEN, if any, shall be appointed by the shareholders meeting of WEBZEN,
such meeting to be held as provided under Article 4. At the date of dissolution
registration, the current directors and auditor of NHN Games shall no longer act
in such capacity and all of their outstanding wages and retirement compensation
shall be settled by NHN Games in full, based on its internal protocol, before
such date.
Article 12. EXPENSES. The
expenses accrued with dissolution of NHN Games shall be determined by mutual
agreement set forth. If the Agreement is terminated pursuant
to Article 13, or voided under Article 14, all costs and expenses incurred in
connection with this Agreement and the transaction contemplated hereby shall be,
unless mutually agreed otherwise, paid by the party incurring such
expense.
Article
13. TERMINATION. This Agreement may be terminated at any time prior to the
Effective Time of the Merger by any party (except by the party in violation of
this Agreement):
(a) by
mutual written consent of WEBZEN and NHN Games; or
(b) if
there are any insolvency, dissolution, liquidation, bankruptcy or work-out
procedures of, or application for such procedures by, either WEBZEN or NHN
Games; or
(c) if
the approval of the shareholders of WEBZEN and/or NHN Games regarding the Merger
has not been obtained in the three months period after the shareholder list
closing date; or
(d) if
the consummation of the Merger becomes illegal or impossible, due to any changes
in the relevant laws or government regulations, and no agreement between WEBZEN
and NHN Games is forthcoming in 30 days since such changes became effective;
or
(e) if a
party breaches the Agreement and does not remedy in 30 days after its receipt of
the other party’s written request for remedy; or
(f) if
the total amount of appraisal rights exercised exceeds KRW 30,000,000,000;
or
(g) if
any change that will have a material adverse impact on the finance, operation,
sales and prospects of either WEBZEN or NHN Games occurs.
In the
event of termination of this Agreement, this Agreement and all related
transactions shall retroactively become void and null except for the liabilities
already incurred.
Article
14. CONDITIONS TO EACH PARTY’S OBLIGATION. The respective obligation of each
party to effect the Merger shall be subject to the satisfaction at or prior to
the Closing of the following conditions:
(a) This
Agreement shall have been approved and adopted by the shareholders of WEBZEN and
NHN Games; and
(b) All
consents, approval or authorization of any governmental authorities as required
by law for the consummation of the transactions contemplated by this Agreement
shall have been obtained.
If any of
these conditions are not met, this Agreement shall become void and null from the
day before Effective Time or a date mutually agreed upon.
Article
15. OTHERS.
(a) The
base date for the calculation of the stock exchange ratio shall be April 14,
2010.
(b)
WEBZEN and NHN Games shall jointly determine any other matters required to
consummate the Merger but not specified in this Agreement.
IN
WITNESS THEREOF, the parties hereto have executed two copies of this Agreement,
each signed and sealed by their representative of WEBZEN and NHN Games, one copy
to be kept by each party.
April 15,
2010
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NHN
Games Co., Ltd.
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Address:
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Address:
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Xxxxx
00, Xxxxxxx Xxxx Xxxxx XX
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Xxxxx
00, Xxxxxxx Post Tower II
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000-00
Xxxx-0xxxx, Xxxx-xx, Xxxxx
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000-00
Xxxx-0xxxx, Xxxx-xx, Xxxxx
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/s/ Xxxxx Xxxx
Xxx
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/s/ Xxxxxx Xxxx Xxx
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Name:
Xxxxx Xxxx Xxx
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Name
: Xxxxxx Xxxx Xxx
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Title
: CEO
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Title
: CEO
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