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EXHIBIT 2.2
[EXECUTION COPY]
AMENDMENT
TO
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
AMKOR TECHNOLOGY, INC.
as Purchaser
AND
ANAM SEMICONDUCTOR, INC.
as Seller
Dated as of May 6, 1999
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AMENDMENT TO ASSET PURCHASE AGREEMENT
This is AMENDMENT TO ASSET PURCHASE AGREEMENT (the "Amendment"), dated
May 6, 1999 by and between Amkor Technology, Inc., a corporation organized under
the laws of the State of Delaware of the United States, ("Amkor" or "Purchaser")
and Anam Semiconductor, Inc., a corporation organized under the laws of the
Republic of Korea ("Seller"). Purchaser and Seller shall sometimes each be
referred to as a Party and collectively as the Parties.
RECITALS:
WHEREAS, Seller and Purchaser entered into an Asset Purchase Agreement dated
December 30, 1998 (the "Original Agreement") under which Seller agreed to sell
and Purchaser agreed to purchase the semiconductor packaging and test operations
generally known as K4 located at Advanced Science & Xxxxxxxxxx Xxxxxxx, 0 xxxxx,
Xxxxxxx-xxxx, Xxx-xx, Xxxx of Kwangju 500-470 the Republic of Korea
("Business");
WHEREAS, it is Seller's intention that it will use the proceeds from the sale of
K4, upon Closing, primarily for the repayment of its debt to its Korean
creditors, including certain banks and other forms of financial institutions in
Korea (the "Workout Banks"); and
WHEREAS, both Parties desires to make changes to certain sections of the
Original Agreement by entering in an amendment in accordance with Section 5.7 of
the Original Agreement.
NOW THEREFORE, in consideration of the mutual agreements, covenants,
representations and warranties contained herein, and in reliance thereon,
Purchaser and Seller hereby agree as follows:
DEFINITIONS:
Unless specifically defined otherwise herein, the terms defined herein
shall have the same meanings as they were used in the Original Agreement.
AMENDMENTS OF CERTAIN DEFINITIONS
The definition of "IP Licensing Agreements" in the Original Agreement
(on page 4 of the Original Agreement) is hereby deleted and the following shall
be substituted therefor:
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"IP Assignment and Licensing Agreements" have the meaning as described
in the paragraph immediately following Section 1.1(h) of this Amendment.
The definition of "Base Rate" in the Original Agreement (on page 2 of
the Original Agreement) is hereby deleted.
1.1. Amendment of Section 1.1. "Sale and Purchase of Assets" of the
Original Agreement.
The paragraph immediately following Section 1.1(h) of the Original
Agreement (on page 9 of the Original Agreement) is hereby deleted and the
following shall be substituted therefor:
"The Parties agree that certain Intellectual Properties (including
Licensed Intellectual Property) which are identified in Schedule 2.16 as
the Assigned Intellectual Property shall be assigned to Purchaser
hereunder, while the Intellectual Properties which are identified in
Schedule 2.16 as the Licensed Intellectual Properties shall be licensed
to Purchaser rather than being assigned to Purchaser. With respect to
the Assigned Intellectual Properties, to the extent legally and/or
contractually permissible, Seller shall sell, transfer, convey and
assign to Purchaser, free and clear of all Liens of every kind, nature
and description, all right, title and interest of Seller in and to such
Intellectual Properties. Immediately after the assignment of the
Assigned Intellectual Properties, however, Purchaser shall grant to
Seller, an irrevocable, worldwide, non-exclusive, perpetual, paid-up,
royalty-free and transferable (and sub-licensable) license (or
sub-license) to utilize such Assigned Intellectual Properties (including
the Licensed Intellectual Property), after obtaining any and all
consents necessary therefor for Seller to be able to operate the other
businesses of Seller substantially in the manner as such businesses were
operated by Seller. With respect to the Licensed Intellectual
Properties, to the extent legally and/or contractually permissible,
Seller hereby shall grant to Purchaser and its Affiliates, effective at
the Closing Date, an irrevocable, worldwide, non-exclusive, perpetual,
paid-up, royalty-free and transferable (and sub-licensable) license (or
sub-license) to utilize such Intellectual Properties (including the
Licensed Intellectual Property) which Seller has rights to use as of the
Closing Date, after obtaining any and all consents necessary therefor
for Purchaser to be able to operate the Business substantially in the
manner as such Business was operated by Seller. For this purpose,
Purchaser shall enter into one or more assignment and licensing
agreements (the "IP Assignment and
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Licensing Agreements") with the holders of relevant Intellectual
Properties, including Seller itself, prior to the Closing. All costs, if
any, shall be payable by Seller to any third parties in connection with
the transfer, licenses or sub-licenses for the benefit of Purchaser
pursuant to this Agreement."
1.3. Amendment of Section 1.3. "Purchase Price" of the Original
Agreement2Amendment of Section 1.3. "Purchase Price" of the
Original Agreement.
(a) Section 1.3(a) of the Original Agreement (on page 11 of the
Original Agreement) is hereby deleted and the following shall be substituted
therefor:
"The total aggregate purchase price for the Purchased Assets exclusive
of VAT shall be US$575,000,000 (the "Purchase Price") plus the Assumed
Liabilities."
(b) Section 1.3(b) of the Original Agreement (on page 11 of the
Original Agreement) is hereby deleted.
(c) Immediately following the first paragraph in Section 1.3(c) of the
Original Agreement (on pages 11 of the Original Agreement), the following shall
be added:
"In the event that such ruling by the Korean tax authority shall be
issued to the effect that the transaction contemplated hereunder and
under the Original Agreement shall be VAT-payable, Purchaser shall pay
the amount equal to the Purchase Price to Seller at Closing, out of
which Seller shall pay the VAT amount to be payable in accordance with
the relevant VAT law of Korea ("Payable VAT") to the relevant Korean tax
authority when due, and shall immediately provide a copy of the receipt
to Purchaser. When Purchaser actually receives the refund of the VAT in
the amount of the Payable VAT from the relevant tax office, Purchaser
shall immediately deposit the same amount to an Escrow Account or a bank
account designated by Seller's creditor banks for the repayment of debt
by Seller to its creditor banks. Deposit by Purchaser of the refunded
VAT shall discharge ATK's obligation to pay the Purchase Price
irrespective of whether such refunded VAT amount is less than Payable
VAT.
In the event that the ruling by the Korean tax authority shall be issued
to the effect that the transaction contemplated hereunder and under the
Original Agreement shall be VAT-exempt, Purchaser shall not withhold any
amount from the Purchase Price in connection with the VAT."
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(d) Section 1.3(d) of the Original Agreement (on pages 12 through 13 of
the Original Agreement) is hereby deleted in its entirety and the following
shall be substituted therefor:
"(d) On or prior to the Closing Date, Seller, Purchaser and an
escrow agent to be appointed by mutual consent of Seller and Purchaser
("Escrow Agent") shall enter into one or more escrow agreements ("Escrow
Agreements") in such form and substance to be mutually agreed by the
Parties. Such portion of the Purchase Price as provided in Section
1.4(b) shall be deposited with one or more escrow accounts ("Escrow
Accounts") to assure the repayment of certain liabilities by Seller, and
released to its creditors in accordance with the terms of the Escrow
Agreements."
1.4. Amendment of Section 1.4. "Payment of Purchase Price" of the
Original Agreement2Amendment of Section 1.4. "Payment of Purchase
Price" of the Original Agreement.
(a) Section 1.4(a) of the Original Agreement (on page 12 of the
Original Agreement) is hereby deleted and the following shall be substituted
therefor:
"(a) Purchaser's payment at the Closing of the amount which shall
be set forth in Schedule 1.4(a), by wire transfer or delivery of a
certified bank check immediately available and in accordance with the
instructions of Seller;"
(b) Section 1.4(b) of the Original Agreement (on page 12 of the
Original Agreement) is hereby deleted and the following shall be substituted
therefor:
"(b) Purchaser's deposit at the Closing into an Escrow Account of
the amount which shall be set forth in Schedule 1.4(b);"
(c) Section 1.4(c) of the Original Agreement (on page 12 of the
Original Agreement) is hereby deleted.
1.6 Amendment of Section 1.6 "Adjustments to Purchase Price" of the
Original Agreement.
(b) Section 1.6.(b) of the Original Agreement (on pages 13 through 14)
is hereby deleted and the following shall be replaced therefor:
"(b) Adjustment Formula.
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If the Net Asset Value at the Closing Date is less than the Net
Asset Value as of the Balance Sheet Date (without considering the
depreciation between the Closing Date and the Balance Sheet Date), then,
the Purchase Price shall be reduced by the amount of such deficiency
accordingly. In order to give effect to any such reduction, the
Purchaser, at the Purchaser's option, may demand Seller to compensate
for such deficiency by requiring payments or delivery of additional
assets having values equivalent to such deficiency within 15 days from
the date of discovery of such deficiency by the Purchaser, or,
alternatively, withholding of such deficient amount from any amount
owing to Seller by Purchaser or its Affiliates to the extent permissible
under Korean law."
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1.8. Amendment of Section 1.8 "Conditions to Each Party's Obligations"
of the Original Agreement.
(a) The first sentence of Section 1.8(a) of the Original Agreement (on
page 16 of the Original Agreement) is hereby deleted and the following shall be
substituted therefor:
"(a) The Escrow Agreement, the IP Assignment and Licensing
Agreements (or any equivalent thereof), the Transition Service
Agreement, the assignment agreement provided in Section 1.10(b) hereof,
and any other agreements, if any, necessary to vest in Purchaser good,
valid and marketable title to the Purchased Assets (collectively, the
"Ancillary Agreements") have been duly executed and delivered after
having been duly authorized by all necessary corporate actions by the
relevant parties thereto."
1.10 Amendment of Section 1.10 "Conditions to Purchaser's Obligations"
of the Original Agreement.
(h) Section 1.10(h) of the Original Agreement (on page 19 of the
Original Agreement) is hereby deleted and the following shall be substituted
therefor:
"(h) After (i) Amkor shall have been satisfied with the results
of their due diligence, (ii) Amkor shall have entered into an
arrangement satisfactory to Amkor in its sole discretion, to finance the
Purchase Price in full, (iii) Amkor shall have received a fairness
opinion with respect to the terms of the transactions contemplated by
this Agreement, (iv) Amkor shall have received a tax exemption under the
Foreign Capital Promotion Law in regard to its purchase of the Business
("Tax Exemption"), and (v) the Board of Directors of Amkor shall have
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determined that the transactions contemplated herein are in the best
interest of Amkor and Purchaser in light of all circumstances associated
with Seller and the transactions contemplated hereby."
(i) Section 1.10(i) of the Original Agreement (on page 19 of the
Original Agreement) is hereby deleted and the following shall be substituted
therefor:
"(i) Purchaser shall have a right of first refusal if Seller
intends to sell any of K1, K2, K3 or the wafer fabrication facilities to
any third party;"
1.11. Amendment of Section 1.11 "Closing" of the Original Agreement.
Section 1.11 of the Original Agreement (on page 20 of the Original
Agreement) is hereby deleted and the following shall be substituted therefor:
"The closing under this Agreement will take place at such other time,
date or place as the Parties shall mutually agree (the "Closing"). The
date on which Closing occurs is sometimes referred to herein as the
"Closing Date."
1.12. Amendment of Section 1.12 "Deliveries and Proceedings at 2
1.12. Amendment of Section 1.12 "Deliveries and Proceedings at Closing"
of the Original Agreement.
(b) Section 1.12(b)(i) and (ii) of the Original Agreement (on page 21
of the Original Agreement) is hereby deleted and the following shall be
substituted therefor:
"(i) payment of the amount stated in Schedule 1.4(a);
(ii) a certificate evidencing the deposit of the amount stated in
Schedules 1.4(b) with the Escrow Account;"
2.6. Amendment of Section 2.6. "No Changes" of the Original Agreement.
The second sentence of Section 2.6 of the Original Agreement (on page 27
of the Original Agreement) is hereby deleted and the following shall be
substituted therefor:
"Without limiting the generality of the foregoing sentence, there has
not been:"
2.13. Amendment of Section 2.13. "Consent" of the Original
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Agreement.
The reference of "Schedule 2.10" in Section 2.13 of the Original
Agreement (on page 36 of the Original Agreement) is hereby deleted and "Schedule
2.13" shall be substituted therefor.
2.22. Amendment of Section 2.22. "Insurance" of the Original Agreement.
The entire paragraph under Section 2.22 of the Original Agreement (on
pages 42 through 43 of the Original Agreement) is hereby deleted and the
following shall be substituted therefor:
"Attached hereto as Schedule 2.22 is a complete and correct list of all
policies of insurance relating to the Business or the Purchased Assets
of which Seller is the owner, insured or beneficiary, or covering any of
the property of the Business, true, correct and complete copies of which
have been delivered to Purchaser, indicating for each policy the
carrier, the insured, type of coverage, the amounts of coverage,
deductible, premium rate, cash value if any, expiration date and any
pending claims thereunder. All such policies are in full force and
effect. The coverage provided by such policies are reasonable, in both
scope and amount, in light of the risks attendant to the Business and
the Purchased Assets. Seller has paid-in-full all premiums due on such
policies as of the Closing Date. There is no default with respect to any
provision contained in any such policy, nor has there been any failure
to give any notice or present any claim under any such policy in a
timely fashion or in the manner or detail required by the policy. Except
as set forth on Schedule 2.22, there are no outstanding unpaid premiums
or claims under such policies. No notice of cancellation or non-renewal
with respect to, or disallowance of any claim under, any such policy has
been received by Seller. Except as set forth on Schedule 2.22, Seller
has not been refused any insurance, nor has its coverage been limited by
any insurance carrier to which it has applied for insurance or with
which it has carried insurance during the last five years."
4.2 Amendment of Section 4.2 "Employees of the Business" of the Original
Agreement.2
4.2 Amendment of Section 4.2 "Employees of the Business" of the
Original Agreement.
The first sentence under Section 4.2(b) of the Original Agreement (on
page 46 of the Original Agreement) is hereby deleted and the following shall be
substituted
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therefor:
"With respect to the Transferred Employees who elect to terminate their
employment with Seller and commence new employment relation with
Purchaser, Seller shall pay, in a timely manner in accordance with the
requirements of the Labor Standards Act and current company practices,
all salary, bonuses, allowances, severance, unused leave (including the
pro rata portion of accrued but unused leave attributable to the portion
of the 1999 calendar year prior to closing) and any other monetary
obligations or claims relating to the Transferred Employees' employment
with Seller or its Affiliates that may have accrued to those personnel
prior to their separation."
4.7 Amendment of Section 4.7 "Transition Services" of the Original
Agreement.
The entire paragraph under Section 4.7(a) of the Original Agreement (on
page 53 of the Original Agreement) is hereby deleted and the following shall be
substituted therefor:
"(a) During a certain period from the Closing Date (the "Transition
Period") to be separately agreed by the Parties, Seller shall ensure
that the Business is continued to be provided with all of the services
and parts and components currently provided to the Business by Seller or
any Person affiliated with Seller including, among other things, the
research and development, accounting, data processing, materials
procurement, electronic data processing, administrative services and all
other such support services as are reasonably required in connection
with the operation of the Business, on the terms and conditions not less
favorable than the terms and conditions pursuant to which such services
and parts and components are now being provided to the Business.
Purchaser shall pay a reasonable fee for the services to be provided by
Seller during the Transition Period, as mutually agreed by the Parties.
Prior to the Closing, Seller and Purchaser shall enter into a service
agreement ("Transition Service Agreement") to ensure such continued
services during the Transition Period, in such form and substance as
attached hereto as Schedule 4.7."
5.11 Amendment of Section 5.11 "Arbitration" of the Original
Agreement.
Section 5.11 (a) of the Original Agreement (on page 59 of the Original
Agreement) is hereby deleted in its entirety and the following shall be
substituted therefor.
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"(a) Any dispute arising under this Agreement which is not
settled after good faith attempts by the Parties to amicably resolve
such dispute shall be resolved by final and binding arbitration. The
arbitration shall be held in Seoul, Korea if the arbitration is brought
by Purchaser and in [San Francisco, C.A.], United States of America if
the arbitration is brought by Seller in accordance with the Rules of
Conciliation and Arbitration of the International Chamber of Commerce
("ICC Rules") as then existing and shall be heard and determined by an
arbitral tribunal composed of three (3) arbitrators. Each of the Parties
shall appoint one arbitrator each, and both of such arbitrators shall
appoint a third arbitrator who shall serve as the Chairman of such
arbitral tribunal, provided that such third arbitrator is not a citizen
of the U.S.A. or Korea. If either Party fails or decides against
appointing an arbitrator within a period of thirty (30) days of the
appointment of the first arbitrator, or if the arbitrators designated by
the Parties fail or otherwise are unable to appoint the third arbitrator
within (30) days of the appointment of the second arbitrator, then the
remaining arbitrator(s) shall be selected by the President of the
International Chamber of Commerce, U.S.A., which shall act as the
appointing authority."
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IN WITNESS WHEREOF, the Parties have caused this AMENDMENT to be signed in their
respective names by an officer thereof duly authorized as of the date first
above written.
Amkor Technology, Inc.
By:________________________
Name:
Title:
Anam Semiconductor, Inc.
By:________________________
Name:
Title:
