EXHIBIT 2.1
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "AGREEMENT"), dated as of May
17, 2004, by and among Amkor Technology Singapore Pte. Ltd., a Singapore
corporation ("BUYER"), and IBM Singapore Pte Ltd, a Singapore corporation
("SELLER"; "IBM").
W I T N E S S E T H:
WHEREAS, Seller wishes to sell certain semiconductor module test
assets; and
WHEREAS, Buyer wishes to purchase from Seller, and Seller wishes to
sell to Buyer, the Transferred Assets (as defined below) for the purchase price
and subject to the terms and conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the premises set forth above and
the respective covenants, agreements, representations and warranties hereinafter
set forth, Buyer and Seller hereby agree as follows:
DEFINITIONS.
CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings specified below:
"AFFILIATE" shall mean, as to any Person, any other Person or entity
that is controlling, controlled by or under common control with such Person or
entity.
"ALLOCATION STATEMENTS" shall have the meaning set forth in
Section 3.1.
"ASSUMED LIABILITIES" shall have the meaning set forth in
Section 1.4.
"ASSUMPTION AGREEMENT" shall mean the Assignment and Assumption
Agreement in the form set out in Exhibit A to be entered into by the Parties on
the Closing Date and by which Buyer assumes the Assumed Liabilities.
"BUSINESS DAY" shall mean a day (other than Saturday or Sunday or a
gazetted public holiday in Singapore and New York) on which commercial banks are
open for business in Singapore and New York.
"BURDENSOME CONDITION" shall mean any action taken, or credibly
threatened, by or before any Governmental Authority or other Person to challenge
the legality of the transactions contemplated by the Operative Agreements or
that would otherwise deprive a Party of the material benefit of any such
transaction, including (i) the pendency of an investigation by a Governmental
Authority (formal or informal), (ii) the institution of any litigation, or
threat thereof, (iii) an order by a Governmental Authority of competent
jurisdiction preventing consummation of the transactions contemplated by
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the Operative Agreements or placing material conditions or limitations upon such
consummation, or (iv) the issuance of any subpoena, civil investigative demand
or other request for documents or information relating to such transactions that
is unreasonably burdensome in the reasonable judgment of the applicable Person.
"CONTRACT" shall mean any written and signed agreement, contract,
commitment, instrument, document, certificate or other written and signed
binding arrangement or understanding (each, including all amendments thereto).
"CLOSING" shall have the meaning set forth in Section 2.1.
"CLOSING DATE" shall have the meaning set forth in Section 2.1.
"CLOSING STATEMENT" shall have the meaning set forth in Section 2.3.
"CODE" shall have the meaning set forth in Section 3.1.
"CONFIDENTIALITY AGREEMENT" shall mean the confidentiality agreement
between Amkor Technology, Inc. and International Business Machines Corporation,
dated October 17,2003.
"DATE OF EXECUTION" shall mean the date this Agreement and the other
Operative Agreements identified for signature on that date are signed.
"DISCLOSURE SCHEDULE" shall have the meaning set forth in Article VI
hereto.
"EMPLOYEES" shall have the meaning set forth in Section 4.2.
"EXCLUDED ASSETS" shall mean (i) such items of tangible personal
property as are listed on the sub-schedules to Schedule 1.2, subject to the
Closing Statement adjustments described in Section 2.3, as the same may be
depleted or augmented prior to the Closing Date while being managed in the
ordinary course of business,(ii) all Contracts among Seller and/or its
Affiliates, (iii) all customer Contracts (other than customer Contracts, if any,
which form part of the Assumed Liabilities), (iv) all software and intangible
property (other than any software transferred pursuant to Section 4.3), (v) all
interests of Seller in real property, (vi) all accounts receivable in respect of
goods or services to the extent shipped or provided by Seller or Seller's
Affiliates, directly or indirectly, prior to the end of the Closing Date, and
(vii) such tangible personal property that is deemed to be an Excluded Asset
pursuant to the procedure set forth in Section 1.2A.
"FIXED TERM HIRES" shall have the meaning set forth in Section 4.2.
"GOVERNMENTAL ACTIONS" shall mean any authorizations, consents,
approvals, waivers, exceptions, variances, franchises, permissions, permits, and
licenses of, and filings and declarations with, Governmental Authorities.
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1.2. EXCLUDED ASSETS. Notwithstanding anything to the contrary in this
Agreement, the Excluded Assets will be retained by Seller and are excluded from
the Transferred Assets. All intellectual property matters are addressed
exclusively in the Intellectual Property Agreements, and no intellectual
property matters are included in the subject matter of this Agreement, other
than the shrink-wrap and other software as set forth in Section 4.3.
1.2A. OTHER TANGIBLE PERSONAL PROPERTY; CONTRACTS. If, within fifteen (15)
months after the Closing Date, the Parties discover tangible personal property
at the Premises that is not contained on Schedule 1.1 or Schedule 1.2,
respectively or mutually determine that certain material Contracts (other than
any Contracts regarding intellectual property matters) were mistakenly omitted
from Schedule 1.4 (and such tangible personal property or material Contracts do
not otherwise constitute Excluded Assets or Assumed Liabilities, respectively),
then the Parties shall work in good faith to resolve such omission. With respect
to tangible personal property, if the Parties cannot resolve such matter, it
shall be resolved as follows: (1) If, prior to the Closing Date, such property
was primarily utilized by the module test activities at the Premises, then such
property shall be a Transferred Asset; and (2) If, prior to the Closing Date,
such property was not primarily utilized by the module test activities at the
Premises, then such property shall be an Excluded Asset. Following the date that
is fifteen (15) months after the Closing Date, any tangible personal property
not contained on Schedule 1.1 or Schedule 1.2, or allocated as described in the
preceding sentence, shall be assumed to be a Transferred Asset if in the
possession of Buyer and an Excluded Asset if in possession of Seller.
1.3. CONSIDERATION, (a) The Purchase Price to be paid by Buyer to Seller
for the Transferred Assets and the Assumed Liabilities (the "PURCHASE PRICE")
shall be twenty-three million United States Dollars (US$23,000,000). Therefore,
on or before November 30, 2004, Buyer shall pay to Seller such amount by
electronic funds transfer, in immediately available funds in U.S. Dollars, to
the following account:
Account : IBM Singapore Pte Ltd
Bank : Citibank N.A., Singapore
Account # : 0-000000-000
SWIFT : XXXXXXXX
Bank Address : 0 Xxxxxxx Xxxxxx
#00-00 Xxxxxxxxxx Xxxxx
Xxxxxxxxx 000000
1.4. ASSUMED LIABILITIES. Upon the terms and subject to the conditions
hereof, as of the Closing, Seller or Seller's Affiliates, if applicable, will
assign and transfer to Buyer, and Buyer will assume the commitments, liabilities
and obligations of Seller listed on Schedule 1.4, (together the "ASSUMED
LIABILITIES") including listed Contracts and the liabilities set forth on
Schedules 1.4 A and 1.4.B pursuant to an Assumption Agreement in the form
attached as Exhibit A. Unless described on Schedule 1.4B, Buyer is not assuming
and undertaking, and Seller shall remain liable for, any obligations or
liabilities of Seller, contingent or otherwise, whenever asserted, relating to
periods on or prior to
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the Closing Date, or work performed during such periods and such obligations and
liabilities are specifically excluded from the Assumed Liabilities. Without
limiting the generality of the foregoing, except for the Assumed Liabilities or
as provided in the Operative Agreements, Buyer is not assuming or undertaking
any obligations or liabilities of Seller to any assets or Contracts which are
not included in the Transferred Assets or the Assumed Liabilities.
Notwithstanding anything to the contrary, the Assumed Liabilities do not include
Excluded Assets or any obligations or liabilities relating to or in respect of
any Excluded Assets. In addition, except as set forth in the Operative
Agreements, Buyer shall not assume any liabilities of Seller whether accrued,
absolute or contingent, recorded or unrecorded or otherwise, and the Seller
shall be responsible for, all accounts due and payable, accrued expenses, and
taxes that relate to the period on or prior to the Closing Date, including, but
not limited to the foregoing and all liabilities and obligations of Seller with
respect to current or former employees, directors and independent contractors of
Seller on or prior to the Closing Date.
ARTICLE II. CLOSING.
2.1. CLOSING DATE. Subject to the conditions set forth in Articles VII and
VIII, the closing of the transaction provided for in this Agreement (the
"CLOSING") shall take place at the East Fishkill offices of Seller's Affiliate,
International Business Machines Corporation, within five (5) Business Days after
the satisfaction or waiver of the conditions set forth in Articles VII and VIII
occurs, or at such other time or on such other day as may be agreed by Seller
and Buyer (the "CLOSING DATE"). The Parties intend that the Closing Date be on
or before May 31, 2004. All transactions provided for herein are to occur on and
as of the Closing Date and shall be deemed to have occurred simultaneously and
the Closing shall be deemed complete at 11:59:59 pm Singapore time on the
Closing Date. In the event that Closing shall not take place due to any failure
to satisfy any or all the conditions precedent mentioned in Article VII or
Article VIII, this Agreement shall ipso facto cease and all parties hereto shall
have no claims against each other.
2.2. CLOSING. (a) On Closing, Seller shall (i) make the Transferred Assets
available to Buyer at the Premises and (ii) execute such conveyances, transfers,
assignments, and documents of title that are listed and attached as Schedule
2.2(a)l or as the Parties may otherwise agree and such consents and licenses
that are listed and attached as Schedule 2.2(a)2 or as the Parties may otherwise
agree. Title to the Transferred Assets shall pass to Buyer and Buyer's
assumption of the Assumed Liabilities shall occur at the Closing;
(b) At 11:59:59 pm Singapore time on the Closing Date, and to the extent
that they are transferable by Seller, Seller hereby assigns any and all
manufacturer's warranties, conditions, guarantees or indemnities relating to the
Transferred Assets, provided that such warranties, conditions, guarantees or
indemnities are transferable hereunder without further expenditure by Seller and
without additional assistance by Seller. For the avoidance of doubt, no such
transfer shall constitute a transfer of any of
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Seller's obligations or liabilities under any relevant Seller Contracts unless
such Seller Contracts are Assumed Liabilities.
2.3. CLOSING STATEMENT. At the Closing, Seller will prepare and deliver to
Buyer a closing statement for the physical assets that constitute the
Transferred Assets (the "CLOSING STATEMENT"), as of the Closing Date. The
purpose of the Closing Statement is to correctly reflect any changes in the
listing of the physical assets that constitute the Transferred Assets, between
the Date of Execution and the Closing which occurred in the ordinary course of
business. The Closing Statement shall become final and binding upon the Parties
unless Buyer gives written notice of its disagreement of such items included on
or excluded from the Closing Statement within fifteen (15) days following
Buyer's receipt of the Closing Statement. Any such notice shall specify in
reasonable detail the nature of any disagreement so asserted.
ARTICLE III. TAX MATTERS.
3.1. ALLOCATION OF PURCHASE PRICE. Within thirty (30) days of the Closing
Date, Buyer shall prepare an allocation of the Purchase Price, allocating the
total of the Purchase Price (and other payments properly treated as additional
Purchase Price for Tax purposes) to the different Transferred Assets and the
Assumed Liabilities pursuant to Section 1060 of the United States Internal
Revenue Code of 1986, as amended, and the United States Treasury Regulations
promulgated thereunder (hereinafter, the "CODE") (the "ALLOCATION STATEMENTS")
and provide Seller with the Allocation Statements and all supporting
documentation for Seller's review and consent, which will not be unreasonably
withheld.
Buyer and Seller shall each file all income, franchise and other Tax
Returns (as defined below), and execute such other documents as may be required
by any Governmental Authority, in a manner consistent with the Allocation
Statements. Buyer shall prepare the Form 8594 under Section 1060 of the Code
based on the Allocation Statements and deliver such form and all documentation
used in the preparation and support of such Allocation Statements and form
(including, but not limited to, appraisals) to the Seller within 30 days after
finalizing of the Allocation Statements. The Buyer and the Seller agree to file
such form with each relevant taxing authority and to refrain from taking any
position inconsistent with such form or Allocation Statements.
3.2. FILING OF RETURNS AND PAYMENT OF TAXES. Seller shall prepare and
file, or cause to be prepared and filed, with the appropriate authorities all
Tax returns, reports and forms (herein "TAX RETURNS") and shall pay, or cause to
be paid, when due all Taxes relating to the Transferred Assets and the Assumed
Liabilities attributable to any taxable period which ends on or prior to the
Closing Date (herein "PRE-CLOSING TAX PERIOD"). Buyer shall prepare and file, or
cause to be prepared and filed, with the appropriate authorities all Tax
Returns, and shall pay, or cause to be paid, when due all Taxes relating to the
Transferred Assets and the Assumed Liabilities attributable to taxable periods
which are not part of the Pre-Closing Tax Period. If, in order to properly
prepare its Tax Returns required to be filed with Governmental Authorities, it
is necessary that a party be
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furnished with additional information, documents or records relating to the
Transferred Assets and the Assumed Liabilities, both Seller and Buyer agree to
use reasonable efforts to furnish or make available such existing,
non-privileged information at the recipient's request, cost and expense
provided, however, that no party shall be entitled to review or examine the Tax
Returns of any other party.
For purposes of this Section 3.2, in the case of any Taxable period that
includes (but does not end on) the Closing Date (a "STRADDLE PERIOD"), the Taxes
for the Pre-Closing Tax Period shall be computed as if the Pre-Closing Tax
Period ended as of the close of business on the Closing Date and the amount of
Taxes for taxable periods that are not part of the Pre-Closing Tax Period shall
be the excess, if any, of (x) the Taxes for the Straddle Period over (y) the
Taxes for the Pre-Closing Tax Period.
3.3. REFUNDS AND CREDITS. Any refunds and credits attributable to the Pre-
Closing Tax Period shall be for the account of the Seller.
3.4. TRANSFER TAXES. All transfer, documentary, sales, use, registration,
value- added, stamp duty, goods and services, real estate transfer, and any
similar taxes and related fees (including interest, penalties and additions to
tax) incurred in connection with this Agreement, the other Operative Agreements
and the transactions contemplated hereby and thereby shall be borne by Buyer, in
addition to the consideration provided for in Section 1.3. To the extent
permitted by applicable law, Buyer and Seller shall cooperate with each other to
obtain exemptions from such taxes, provided that neither party shall be
obligated to seek any exemption that could reasonably be expected to result in
any governmental audit of its books and records.
3.5. TAX DEFINITIONS. For purposes of this Agreement, "TAX" or "TAXES"
shall mean all taxes, imposts, duties, withholdings, charges, fees, levies, or
other assessments imposed by any governmental or taxing authority, whether
domestic or foreign, (including but not limited to, income, excise, property,
sales, use, transfer, conveyance, payroll or other employment related tax,
license, registration, ad valorem, value added, withholding, social security,
national insurance (or other similar contributions or payments), franchise,
estimated severance, stamp taxes, taxes based upon or measured by capital stock,
net worth or gross receipts and other taxes) together with all interest, fines,
penalties and additions attributable to or imposed with respect to such amounts
and any obligations under any agreement or arrangements with any Person with
respect to such amounts.
ARTICLE IV ADDITIONAL AGREEMENTS.
4.1. CONSENTS, NOVATIONS AND SUBCONTRACTED WORK. Buyer and Seller shall
use reasonable efforts to obtain, as soon as practicable, all requisite consents
to transfers, assignments and novations, as the case may be, of all of the
Transferred Assets and the Assumed Liabilities. Buyer shall cooperate with
Seller (including, where necessary, entering into appropriate instruments of
assumption as shall be agreed upon) to have Seller released from all liability
(other than any liabilities arising prior to the Closing
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Date) to third parties with respect to the Assumed Liabilities, and the Parties
will each solicit such releases concurrently, in a manner acceptable to the
Parties, with the solicitation of consents from third parties to the transfer,
assignment and novation of the Transferred Assets and the Assumed Liabilities;
provided, that neither Party shall be required to grant any additional
consideration to any third party in order to obtain any such consent, novation,
assumption or release. With respect to any Assumed Liabilities for which Seller
has any secondary liability to third parties, Buyer shall provide Seller
reasonable access and information in order for Seller to ascertain continuing
compliance by Buyer with all contract terms and conditions applicable thereto.
The material consents to assignments or novations identified by the Parties as
of the Date of Execution, if any, are listed on Schedule 4.1. If any such
required consents and novations cannot be secured without the incurring of any
significant additional costs, where additional action is deemed necessary by the
Parties, the Parties hereby agree to proceed with respect to the underlying
rights and obligations as shall permit Buyer to perform the obligations of
Seller thereunder, as a subcontractor or otherwise, and Buyer to obtain the
benefit thereof and to the use of the Transferred Assets (the "SUBCONTRACTED
WORK"); and until the requisite consents and novations are obtained, such
obligations will not be deemed to be included in the Assumed Liabilities and
nothing contained herein will be deemed to constitute a breach of the contract
underlying such rights and obligations. Buyer agrees to diligently perform and
discharge the obligations of Seller in connection with the Subcontracted Work
directly, or indirectly through Seller, as applicable; and to the extent that
consents to assignment and novation are obtained after the Closing, the Parties
agree that such obligations will no longer be considered to be Subcontracted
Work at such time, but will instead be deemed to be Assumed Liabilities for all
purposes of this Agreement.
4.2. EMPLOYEES AND EMPLOYEE BENEFITS, (a) Schedule 4.2.(a)(l) contains a
list of the regular employees employed by Seller as of the date hereof in
connection with the Transferred Assets (including active employees and employees
who are on leave of absence or sick leave) (the "REGULAR EMPLOYEES") and
Schedule 4.2.(a)(2) contains a list of the fixed term hires temporarily employed
by Seller as of the date hereof in connection with the Transferred Assets (the
"FIXED TERM HIRES", and together with the Regular Employees, the "EMPLOYEES").
These schedules will be updated immediately prior to the Closing to reflect
changes in that population occurring in the ordinary course between the Date of
Execution and the Closing. Buyer shall make employment offers to the Regular
Employees in accordance with section 4.2(b). The Regular Employees who shall
have received employment offers from Buyer and who begin their employment with
Buyer shall be employed by Buyer in accordance with the terms and conditions set
forth in subsections 4.2(b), 4.2(c), 4.2(d) and 4.2(e) below. Fixed Term Hires
who receive employment offers from Buyer and who begin their employment with
Buyer shall be employed by Buyer in accordance with the terms and conditions set
forth in subsection 4.2(h) below.
(b) Effective upon the Closing, Buyer agrees that it will employ the
Regular Employees in the same positions and at the same salaries and variable
pay earnings opportunity and substantially the same terms and conditions,
including benefit plans, as
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those in effect immediately prior to the Closing. In addition, Buyer shall grant
stock options to Employees in amounts that Buyer and Seller deem commercially
reasonable. Prior periods of employment with the Seller (herein "SERVICE
CREDIT") will be considered as employment with the Buyer for all employment
purposes with the Buyer including the calculation of severance pay, seniority
and benefits eligibility. Vacation service credit with the Seller will be
counted as vacation service credit with the Buyer. Buyer has summarized its
planned employment terms and benefit plans for the Regular Employees in Schedule
4.2(b). Buyer shall implement the following severance pay practice for the
Regular Employees: if, within the first twelve (12) months after Closing, a
Regular Employee is involuntarily severed without cause from full time
employment with Buyer, such Regular Employee shall receive from Buyer one (1)
month of severance pay for each one (1) year of service, provided that the
Regular Employee has three (3) or more years service, with a maximum of six (6)
month's severance pay. Regular Employees with less than three (3) years of
service, shall receive from Buyer a flat severance payment of (2) weeks of base
salary. As applicable, each month of severance pay will be an amount equal to
the Regular Employee's monthly base salary and each week of severance pay will
be an amount equal to the Regular Employee's weekly base salary. For one year
from the Closing Date, Buyer agrees that it will not change this severance pay
practice as applied to the Regular Employees. Buyer agrees to use reasonable
efforts to obtain a general release from such severed Regular Employees which
includes Seller and its Subsidiaries and Affiliates, as a condition of such
severance pay. Nothing contained in this Agreement shall be construed to in any
way limit or prevent Buyer from terminating any Regular Employee at any time for
cause or for reasons related to poor performance or conditions of employment.
For the purposes of this paragraph, "CAUSE" shall mean the determinations of the
applicable courts, under the applicable common law and statutes, as 'cause' in
such employment termination cases.
(c) Seller shall be responsible for all liabilities, salaries, employer
benefit plan contributions and similar employer obligations for the pre-Closing
period for all Employees. Buyer shall be responsible as of Closing for all
liabilities, salaries, employer benefit plan contributions and similar employer
obligations for the post-Closing period for all Regular Employees. Upon
separation from Seller, Employees will be paid by Seller for vacation accrued,
plus previously deferred vacation, less vacation taken.
(d) Buyer shall be responsible for liabilities with respect to the
termination of any Regular Employees by Buyer after the Closing, including
without limitation, health care continuation coverage with respect to plans
established or maintained by Buyer after the Closing, and damages or settlements
arising out of any claims of wrongful or illegal termination, and for complying
with the requirements of all applicable laws with respect to any such
termination.
(e) Buyer agrees that, for a period of two years from the Closing Date, it
will not, directly or indirectly, solicit for employment any employee, other
than Employees, of Seller in Singapore or with whom Buyer had contact in
connection with this transaction (so long as such person is employed by Seller).
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(f) Seller agrees that, for a period of two years from the Closing Date,
it will not, directly or indirectly, solicit for employment any employee listed
on Schedule 4.2(a)(l) and Schedule 4.2 (a)(2) (so long as such person is
employed by Buyer).
(g) Nothing in Section 4.2 (e) or Section 4.2(f) above shall restrict
general solicitations for employment or the right of any employee of one Party,
on that employee's own initiative or in response to general solicitations, to
seek employment from the other Party.
(h) Effective upon the Closing, Buyer will employ each Fixed Term Hire as
either a temporary or regular employee of Buyer, or will enter into a contractor
relationship with any such Fixed Term Hire, in each instance as Buyer may
determine in its own discretion. The terms and conditions of any such
relationship between Buyer and a Fixed Term Hire shall be as determined by
Buyer. Prior periods of a Fixed Term Hire's employment with Seller will not be
considered as employment with Buyer for any purpose. Buyer shall have no
responsibility for any liabilities, salaries, benefits, or similar employer
obligations accruing to the Fixed Term Hires as a result of their employment
with Seller. Nothing contained in this Agreement shall be construed in any way
to limit or prevent Buyer from terminating any Fixed Term Hire at any time for
any reason.
(i) For ninety (90) days from the Date of Execution, Seller shall, to the
extent it deems commercially reasonable, assist Buyer in making applications for
work permits or employment passes for Employees, including providing any
information reasonably requested by Buyer or any relevant government or other
authorities.
(j) After the Closing, Seller shall, to the extent permitted by applicable
law and subject to any confidentiality obligations, provide to the Buyer such
information regarding the Employees that is contained in the Seller's records
and is relevant to the period of Employees' employment with Seller.
4.3. SHRINK-WRAP AND OTHER SOFTWARE. Seller shall transfer at Closing, to
the extent it has the legal right to do so and subject to the applicable license
agreements with the licensors, its royalty-free usage rights to the shrink-wrap
personal computer software (also known as conditions-of-use software) being used
in its ordinary course of business as of the Date of Execution on the personal
computers that are Transferred Assets. Seller further agrees to transfer at
Closing, to the extent it has the legal right to do so and subject to the
applicable license agreements with the licensors, its royalty-free usage rights
to all upgrades and updates to the shrink-wrap personal computer software that
are in Seller's possession and being used on the personal computers that are
Transferred Assets as of the Closing Date. If such software copyrights are owned
by Seller, Seller's license terms and conditions continue to apply. However, no
software rights are being transferred under this Agreement that relate to public
domain software or freeware.
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Seller shall transfer at Closing, to the extent it has the legal right to do so
and subject to the applicable license agreements with the licensors, its
royalty-free usage rights to the other software being used in its ordinary
course of business as of the Date of Execution on the Transferred Assets,
provided that such other software is not also used otherwise by Seller or its
Affiliates. Seller further agrees to transfer at Closing, to the extent it has
the legal right to do so and subject to the applicable license agreements with
the licensors, its royalty-free usage rights to all upgrades and updates to such
other software that are in Seller's possession and being used on the Transferred
Assets as of the Closing Date. If such software copyrights are owned by Seller,
Seller's license terms and conditions continue to apply. However, no software
rights are being transferred under this Agreement that relate to public domain
software or freeware.
Notwithstanding anything else in this Agreement, Buyer acknowledges that certain
licenses for shrink-wrap personal computer software and other software used on,
or contained within, Transferred Assets are not assignable by Seller and that
Buyer may have to independently obtain licenses for such software. Buyer further
acknowledges that additional software license fees may be required for Buyer's
use of such software if such software copyrights are owned by third parties or
Affiliates of Seller and Buyer agrees to bear such fees.
4.4. FURTHER ACTION. Each of the Parties agrees to execute and deliver,
or, if applicable, to cause its Affiliates to execute and deliver, after the
Closing Date such other documents, certificates, agreements and other writings
and to take such other commercially reasonable actions as may be necessary or
desirable, in the opinion of both Parties' counsel, in order to consummate or
implement expeditiously the transactions contemplated under this Agreement.
4.5. DISCHARGE OF ASSUMED LIABILITIES. Buyer shall discharge the Assumed
Liabilities on a timely basis and in accordance with their terms and Buyer
agrees that Seller shall have no liability for any failure of Buyer to discharge
the Assumed Liabilities in accordance with their terms.
4.6. POST-CLOSING PAYMENTS. The Parties acknowledge that, after the
Closing Date, Seller may make payments to third parties on behalf of Buyer
associated with certain Transferred Assets and Assumed Liabilities. Buyer agrees
to reimburse Seller for such payments, to the extent that they relate to the
period after the Closing, promptly upon receipt of an invoice from Seller.
Seller shall invoice Buyer monthly on the fifteenth (15th) day of each month. If
Buyer disputes such invoice on the basis that such payment did not relate to the
Transferred Assets or the Assumed Liabilities for any period after the Closing,
Buyer shall, within fourteen (14) calendar days of receiving such invoice, give
notice to Seller of such dispute and the Parties shall act in good faith to
immediately resolve such dispute. All amounts payable by Buyer to Seller
pursuant to this Section 4.6, shall be paid in immediately available funds in
U.S. dollars to Seller's account set forth in Section 1.3.
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4.7. LICENSES AND PERMITS. Buyer must seek a regulatory or other permitted
transfer of, or obtain through separate application for itself, any applicable
licenses and permits, including environmental licenses and permits, which are
required for Buyer's operation or ownership of the Transferred Assets. For
ninety (90) days from the Date of Execution, Seller will, to the extent that
Seller deems commercially reasonable, assist Buyer in such matters.
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF BUYER
As of the Date of Execution and as of the Closing Date, Buyer hereby
represents and warrants to Seller as follows:
5.1. INCORPORATION. Buyer is a corporation duly organized and validly
existing in good standing under the laws of Singapore, with all requisite
corporate power and authority to own its properties and conduct its business as
now being conducted, and is duly qualified in each jurisdiction in which its
ownership of property requires such qualification except where the failure to so
qualify would not have a material adverse effect on Buyer.
5.2. BINDING EFFECT, AUTHORIZATION; VALIDITY OF AGREEMENT. Buyer has the
requisite corporate power and authority to execute and deliver each of the
Operative Agreements and to perform its obligations under each of the foregoing.
Each of the Operative Agreements has been duly and validly authorized, executed
and delivered by Buyer and constitutes the legal, valid and binding obligations
of Buyer in accordance with its respective terms. No other corporate actions or
proceedings on the part of Buyer are necessary to authorize the Operative
Agreements and the transactions contemplated by any of the foregoing.
5.3. NO CONFLICT. The execution and delivery by Buyer of this Agreement
and the other Operative Agreements does not, and the performance by Buyer of its
obligations hereunder and thereunder do not and will not:
(a) conflict with, or result in a breach of, any of the provisions of its
Memorandum and Articles of Association;
(b) breach, violate or contravene any Governmental Rule, or create any
right of termination or acceleration or Lien, that, individually or in the
aggregate, would have a material adverse effect on (i) its authority or ability
to perform any of its obligations under this Agreement or the other Operative
Agreements or (ii) accept transfer and assignment of the Transferred Assets and
the Assumed Liabilities; or
(c) conflict in any respect with, or result in a breach of or default
under, any Contract, license, franchise, permit or any other agreement or
instrument to which Buyer or any of its Subsidiaries is a party or by which it
or any of its Subsidiaries or any of its or their properties may be affected or
bound that, individually or in the aggregate, would
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have a material adverse effect on (i) its authority or ability to perform its
obligations under this Agreement or the other Operative Agreements or (ii) the
Assumed Liabilities(except for agreements and instruments that require the
consent or approval of a third party after the Date of Execution and on or
before Closing, or such other date as the Parties may agree, for the
transactions contemplated by this Agreement).
5.4. NO BROKER. Neither Buyer nor any of its Subsidiaries has engaged any
corporation, firm or other Person who is entitled to any fee or commission as a
finder or a broker in connection with the negotiation of this Agreement or the
other Operative Agreements or the consummation of the transactions contemplated
hereby and thereby, and Buyer shall be responsible for all liabilities and
claims (including costs and expenses of defending against same) arising in
connection with any claim by a finder or broker that it acted on behalf of Buyer
or any of its Subsidiaries in connection with the transactions contemplated
hereby and thereby.
5.5. ACTIONS AND PROCEEDINGS. There are no (a) outstanding judgments,
orders, writs, injunctions or decrees of any court, Governmental Authority or
arbitration tribunal that have a material adverse effect on the Buyer's ability
to perform its obligations under the Operative Agreements; or (b) actions,
suits, claims or legal, administrative or arbitration proceedings pending or, to
the knowledge of Buyer, threatened against Buyer that have a material adverse
effect on the Buyer's ability to perform its obligations under the Operative
Agreements.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF SELLER
As of the Date of Execution and as of the Closing Date and except as set
forth on the disclosure schedule delivered by the Seller to Buyer (the
"DISCLOSURE SCHEDULE"), Seller hereby represents and warrants to Buyer as
follows:
6.1. INCORPORATION. Seller is a duly incorporated and validly existing
corporation in good standing under the laws of Singapore, with all requisite
corporate power and authority to own its properties and conduct its business,
and is duly qualified in each jurisdiction in which its ownership of property
requires such qualification except where the failure to so qualify would not
have a material adverse effect upon the Transferred Assets.
6.2. BINDING EFFECT; AUTHORIZATION; VALIDITY OF AGREEMENT. Seller has the
requisite corporate power and authority to execute and deliver the Operative
Agreements and to perform its obligations under each of the foregoing. Each of
the Operative Agreements has been duly and validly authorized, executed and
delivered by Seller and constitutes the legal, valid and binding obligations of
Seller in accordance with its respective terms. No other corporate actions or
proceedings on the part of Seller are necessary to authorize the Operative
Agreements and the transactions contemplated by any of the foregoing.
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6.3. NO CONFLICT. The execution and delivery by Seller of this Agreement
and the other Operative Agreements does not, and the performance by Seller of
its obligations hereunder and thereunder do not and will not:
(a) conflict with, or result in a breach of, any of the provisions of its
Memorandum and Articles of Association;
(b) breach, violate or contravene any Governmental Rule or create any
right of termination or acceleration or Liens, that, individually or in the
aggregate, would have a material adverse effect on (i) its authority or ability
to perform its obligations under the Operative Agreements, or (ii) the
Transferred Assets; or
(c) conflict in any respect with, or result in a breach of or default
under, any Contract, license, franchise, permit or any other agreement or
instrument to which Seller or any of its Subsidiaries is a party or by which it
or any of its Subsidiaries or any of its or their properties may be affected or
bound that, individually or in the aggregate, would have a material adverse
effect on (i) its authority or ability to perform its obligations under this
Agreement or the other Operative Agreements, or (ii) the Transferred Assets
(except for agreements and instruments that require the consent or approval of a
third party after the Date of Execution and on or before Closing, or such other
date as the Parties may agree, for the transactions contemplated by this
Agreement).
6.4. NO BROKER. Seller has engaged no corporation, firm or other Person
who is entitled to any fee or commission as a finder or a broker in connection
with the negotiation of this Agreement or the other Operative Agreements or the
consummation of the transactions contemplated hereby and thereby, and Seller
shall be responsible for all liabilities and claims (including costs and
expenses of defending against same) arising in connection with any claim by a
finder or broker that it acted on behalf of Seller in connection with the
transactions contemplated hereby.
6.5. TITLE TO THE TRANSFERRED ASSETS. Seller or a Seller Affiliate has
good and marketable title to the Transferred Assets listed on Schedule 1.1
hereto, free and clear of any Liens, other than Permitted Liens. At Closing, all
of the Transferred Assets shall be transferred by Seller to the Buyer free and
clear of any and all Liens (other than Permitted Liens), together with any and
all consents of third parties required to transfer the Transferred Assets to the
Buyer, except where the failure to obtain such consent would not have a material
adverse effect on the Transferred Assets collectively.
6.6. ACTIONS AND PROCEEDINGS. There are no (a) outstanding judgments,
orders, writs, injunctions or decrees of any court, Governmental Authority or
arbitration tribunal that have a material adverse effect on the Seller's ability
to perform its obligations under the Operative Agreements; or (b) actions,
suits, claims or legal, administrative or arbitration proceedings pending or, to
the knowledge of Seller, threatened against Seller that have a material adverse
effect on the Seller's ability to perform its obligations under the Operative
Agreements.
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6.7. NO RIGHTS IN OTHERS TO TRANSFERRED ASSETS. Neither Seller nor any
Affiliate of Seller is party to any outstanding Contracts giving any Person any
present or future right to require Seller to transfer to any Person any
ownership or possessory interest in, or to grant any lien on, any of the
Transferred Assets, other than pursuant to this Agreement.
6.8. CONTRACTS. Schedule 1.4 contains a true and complete list of all
material contracts included in the Transferred Assets and Assumed Liabilities.
Seller has performed or is performing all material obligations required to be
performed by it under such Contracts and is not (with or without notice, lapse
of time or both) in breach or default in any material respect thereunder; and,
to the knowledge of Seller, no other party to any of such Contracts is (with or
without notice or lapse of time or both) in breach or default in any material
respect thereunder.
To the Seller's knowledge, each contract set forth on Schedule 1.4 is in full
force and effect and there exists no (i) event of default under such contract by
either Seller or any other party to any such contract or (ii) event, occurrence,
condition or act (including the consummation of the transactions contemplated
hereby) which, with the giving of notice, the lapse of time or the happening of
any other event or condition, would become an event of default under such
contract by either Seller or any other party thereto.
6.9. LICENSES AND PERMITS. Seller has all licenses and permits and other
governmental authorizations and approvals which are material to the operation of
the Transferred Assets and which are required for Seller's operation of the
Transferred Assets, except where the failure to have such licenses and permits
would not have a material adverse effect on Seller's ability to operate the
Transferred Assets.
6.10. LABOR MATTERS. Seller is not bound by any collective bargaining or
any other type of collective labor or union agreement with respect to the
Employees and the Transferred Assets. No strike, labor suit or proceeding or
labor administrative proceeding is pending or, to Seller's knowledge, threatened
respecting the Employees.
6.11 SELLER'S USE OF TRANSFERRED ASSETS PRIOR TO CLOSING. From the date of
this Agreement until the Closing Date, Seller will use the Transferred Assets in
the ordinary course of its module test activities at the Premises.
6.12. WARRANTIES. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES
MADE BY SELLER IN THIS ARTICLE VI, SELLER MAKES NO REPRESENTATION OR WARRANTY,
EXPRESS OR IMPLIED, CONCERNING THE TRANSFERRED ASSETS AND ASSUMED LIABILITIES,
IT BEING SPECIFICALLY UNDERSTOOD BY BUYER THAT, EXCEPT FOR THE EXPRESS
WARRANTIES SET FORTH IN THIS ARTICLE VI, THE TRANSFERRED ASSETS AND ASSUMED
LIABILITIES ARE BEING SOLD AND TRANSFERRED "AS IS" IN ALL RESPECTS. SELLER
SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR SUITABILITY OR FITNESS
FOR ANY PARTICULAR
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PURPOSE OF BUYER'S, WHETHER OR NOT SELLER HAS BEEN MADE AWARE OF ANY SUCH
PURPOSE.
6.13 TAX MATTERS. Seller has timely filed within the time period for
filing or any extension granted with respect thereto, all Tax returns which it
is required to file relating or pertaining to any and all Taxes attributable to
or levied upon the Transferred Assets with respect to the Pre-Closing Tax Period
and has paid any and all Taxes it is required to pay in connection with the
taxable period to which such Tax returns relate. There are (and as of
immediately following the Closing there will be) no liens for Taxes on the
Transferred Assets, other than Permitted Liens, and no action, proceeding or, to
the knowledge of Seller, investigation has been instituted against Seller which
would give rise to any such lien, other than Permitted Liens. Seller has no
knowledge of any claims asserted or threatened with respect to any Taxes.
6.14. COMPLIANCE WITH APPLICABLE LAWS. Except as disclosed in the
Disclosure Schedule, Seller is conducting its business relating to the
Transferred Assets and the Assumed Liabilities in material compliance with
applicable statutes, laws, ordinances, rules, orders and regulations of all
Governmental Authorities.
ARTICLE VII. CONDITIONS OF BUYER'S OBLIGATIONS
The obligation of Buyer to consummate the transactions contemplated herein
is subject to the satisfaction (or waiver by Buyer) of the conditions set forth
below in this Article.
7.1. REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Seller made in this Agreement and the other Operative Agreements shall be true
and correct in all material respects as of the date of this Agreement and as of
the Closing Date with the same effect as if made at and as of the Closing Date,
except to the extent such representations and warranties expressly relate to an
earlier time in which case such representations and warranties shall be true and
correct in all material respects as of such earlier time. Seller shall have
performed or complied with in all material respects its respective covenants,
agreements and undertakings contained in this Agreement and the other Operative
Agreements required to be performed at or prior to the Closing.
7.2. CONSENTS, APPROVALS, AND INJUNCTIONS. Seller shall have obtained or
made all consents, approvals, orders, licenses, permits and authorizations of,
and registrations, declarations and filings with, any Governmental Authority or
any other Person required to be obtained or made by or with respect to the
transfer and sale of the Transferred Assets in connection with the execution and
delivery of this Agreement and the other Operative Agreements and the
consummation of the transactions contemplated hereby and thereby (including
without limitation, the transfer and assignment of the Transferred Assets and
the Assumed Liabilities).
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7.3. CONSENTS, GOVERNMENTAL ACTIONS, PERMITS; BURDENSOME CONDITIONS.
(a) All Governmental Actions set forth on Schedule 7.3(a), if any,
including the issuance or transfer of all permits or other consents of
Governmental Authorities necessary for Seller to transfer the Transferred Assets
shall (i) have been taken, given or obtained, (ii) be in full force and effect,
and (iii) not be subject to any pending proceedings or appeals, administrative,
judicial or otherwise (and the time for appeal shall have expired or, if an
appeal shall have been taken, it shall have been dismissed).
(b) No Burdensome Condition shall exist with respect to Buyer in
connection with the transactions contemplated by the Operative Agreements.
7.4. GOVERNMENTAL RULE. No Governmental Rule shall have been instituted,
issued or proposed to restrain, enjoin or prevent the consummation of the
transactions contemplated by this Agreement and the other Operative Agreements
or to invalidate, suspend or require modification of any material provision of
any Operative Agreement.
7.5. OPERATIVE AGREEMENTS AND OTHER AGREEMENTS. Seller shall have entered
into each of the Operative Agreements to be executed by it and each such
Operative Agreement shall be in full force and effect without breach thereunder
by Seller. International Business Machines Corporation and Amkor Technology,
Inc. shall have entered into the Intellectual Property Agreements, "Goods
Agreement" and related "Statement of Work" and "Attachments" to such "Statement
of Work", and each such agreement shall be in full force and effect without
breach thereunder by International Business Machines Corporation. IBM
Interconnect Packaging Solutions (Shanghai) Co., Ltd. and Amkor Assembly & Test
(Shanghai) Co., Ltd. shall have entered into the "Asset Purchase Agreement",
including its related "Assignment and Assumption Agreement", and each such
agreement shall be in full force and effect without breach thereunder by IBM
Interconnect Packaging Solutions (Shanghai) Co., Ltd. Shanghai Waigaoqiao Free
Trade Zone, Xin Development Co., Ltd. and Amkor Assembly & Test (Shanghai) Co.,
Ltd. shall have entered into a real estate sales contract with respect to the
premises leased by IBM Interconnect Packaging Solutions (Shanghai) Co., Ltd. and
such agreement shall be in full force and effect without breach thereunder
by Shanghai Waigaoqiao Free Trade Zone, Xin Development Co., Ltd. Shanghai
Waigaoqiao Free Trade Zone, Xin Development Co., Ltd. and IBM Interconnect
Packaging Solutions (Shanghai) Co., Ltd. shall have entered into the "Lease
Modification and Termination Agreement" and such agreement shall be in full
force and effect without breach thereunder by either party thereto. Amkor
Assembly & Test (Shanghai) Co., Ltd. and IBM Interconnect Packaging Solutions
(Shanghai) Co., Ltd. shall have entered into the "Real Estate Property and
License Agreement" (including attached form of sublease) and such agreement
shall be in full force and effect without breach thereunder by IBM Interconnect
Packaging Solutions (Shanghai) Co., Ltd. Buyer and Seller shall have entered
into the "Transition Services Agreement" and such agreement shall be in full
force and effect without breach thereunder by Seller.
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7.6. INJUNCTIONS, ORDERS. (a) No injunction, order or decree of any
Governmental Authority shall be in effect as of the Closing, and no lawsuit,
claim, proceeding or investigation shall be pending or threatened by or before
any Governmental Authority as of the Closing, which would restrain, prohibit or
make unlawful the transfer to, and the ownership and operation by Buyer of the
Transferred Assets or the assumption by Buyer of the Assumed Liabilities or
invalidate or suspend any provision of the Operative Agreements in any material
respect.
(b) No action or proceeding challenging the transactions or any provision
of this Agreement or the other Operative Agreements in any material respect
shall be pending or threatened against any party.
7.7. CLOSING DOCUMENTS. Seller shall have delivered to Buyer the following
documents:
(a) a certificate of a duly authorized officer of Seller, dated as of the
Closing Date, to the effect that the representations and warranties of Seller in
this Agreement are true and correct in all material respects (save as disclosed
or qualified in the Disclosure Schedule) and that all actions required to be
taken by Seller prior to the Closing have been duly taken;
(b) a certificate of a director or the secretary or assistant secretary of
Seller, dated the Closing Date, as to the continued existence of Seller and
certifying the authorization of the execution of the certificate described in
Section 7.7(a) and the execution, delivery and performance of the Operative
Agreements; and
(c) Copies of such Seller Benefit Plan's applicable to the Regular
Employees (or, where applicable, a description thereof) as Buyer
requests.
7.8. NO MATERIAL ADVERSE CHANGE. There shall have been no material adverse
change to the Transferred Assets since the Date of Execution.
7.9 CONDITION OF ASSETS. To a material extent, the Transferred Assets
shall not have been damaged or destroyed, prior to the Closing Date, by fire or
other casualty, whether or not fully covered by insurance.
ARTICLE VIII. CONDITIONS TO SELLER'S OBLIGATIONS.
The obligations of Seller to consummate the transactions contemplated
herein shall be subject to the satisfaction (or waiver by Seller) of the
conditions set forth below in this Article.
8.1 RECEIPT OF PARENT GUARANTY FOR THE PURCHASE PRICE AND SECURITY FOR THE
PURCHASE PRICE The receipt by Seller of (i) a parent guaranty, in a form
satisfactory
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to Seller, issued by Amkor Technology, Inc. ("Buyer's Parent") for the Purchase
Price, and (ii) a debenture, in a form satisfactory to the Seller, executed by
Buyerand relating to the Transferred Assets, as security for Buyer's obligation
under Section 1.3 (Consideration) ("Debenture"), and compliance by Buyer's
Parent and Buyer, as applicable, with the conditions to Closing set out in the
parent guaranty and the Debenture.
8.2. REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Buyer made in this Agreement and the other Operative Agreements shall be true
and correct in all material respects as of the date of this Agreement and as of
the Closing Date with the same effect as if made at and as of the Closing Date,
except to the extent such representations and warranties expressly relate to an
earlier time in which case such representations and warranties shall be true and
correct in all material respects as of such earlier time. Buyer shall have
performed or complied with in all material respects its respective covenants,
agreements and undertakings contained in this Agreement and the other Operative
Agreements required to be performed at or prior to the Closing.
8.3. CONSENTS, APPROVALS AND INJUNCTIONS. (a) Buyer shall have obtained or
made all consents, orders, approvals, licenses, permits and authorizations of,
and registrations, declarations and filings with, any Governmental Authority or
any other Person required to be obtained or made by or with respect to Buyer in
connection with the execution and delivery of this Agreement and the other
Operative Agreements, and the consummation of the transactions contemplated
hereby and thereby (including without limitation, the ownership and operation of
the Transferred Assets and the assumption of the Assumed Liabilities).
8.4. CONSENTS, GOVERNMENTAL ACTIONS, PERMITS; BURDENSOME CONDITIONS.
(a) All Governmental Actions set forth on Schedule 7.3(a), if any,
including the issuance or transfer of all permits or other consents of
Governmental Authorities necessary for Buyer to receive the Transferred Assets
shall (i) have been taken, given or obtained, (ii) be in full force and effect,
and (iii) not be subject to any pending proceedings or appeals, administrative,
judicial or otherwise (and the time for appeal shall have expired or, if an
appeal shall have been taken, it shall have been dismissed).
(b) No Burdensome Condition shall exist with respect to Seller in
connection with the transactions contemplated by the Operative Agreements.
8.5. GOVERNMENTAL RULE. No Governmental Rule shall have been instituted,
issued or proposed to restrain, enjoin or prevent the consummation of the
transactions contemplated by this Agreement and the other Operative Agreements
or to invalidate, suspend or require modification of any material provision of
any Operative Agreement.
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8.6. OPERATIVE AGREEMENTS AND OTHER AGREEMENTS. Buyer shall have entered
into each of the Operative Agreements to be executed by it and each such
Operative Agreement shall be in full force and effect without breach thereunder
by Buyer.
Amkor Technology, Inc. and International Business Machines Corporation shall
have entered into the Intellectual Property Agreements, "Goods Agreement" and
related "Statement of Work" and "Attachments" to such "Statement of Work", and
each such agreement shall be in full force and effect without breach thereunder
by Amkor Technology, Inc. Amkor Assembly & Test (Shanghai) Co., Ltd. and IBM
Interconnect Packaging Solutions (Shanghai) Co., Ltd. shall have entered into
the "Asset Purchase Agreement", including its related "Assignment and Assumption
Agreement", and each such agreement shall be in full force and effect without
breach thereunder by Amkor Assembly & Test (Shanghai) Co., Ltd. Shanghai
Waigaoqiao Free Trade Zone, Xin Development Co., Ltd. and Amkor Assembly & Test
(Shanghai) Co., Ltd. shall have entered into a real estate sales contract with
respect to the premises leased by IBM Interconnect Packaging Solutions
(Shanghai) Co., Ltd. and such agreement shall be in full force and effect
without breach thereunder by either party thereto. Shanghai Waigaoqiao Free
Trade Zone, Xin Development Co., Ltd. and IBM Interconnect Packaging Solutions
(Shanghai) Co., Ltd. shall have entered into the "Lease Modification and
Termination Agreement" and such agreement shall be in full force and effect
without breach thereunder by Shanghai Waigaoqiao Free Trade Zone, Xin
Development Co., Ltd. Amkor Assembly & Test (Shanghai) Co., Ltd. and IBM
Interconnect Packaging Solutions (Shanghai) Co., Ltd. shall have entered into
the "Real Estate Property and License Agreement" (including attached form of
sublease) and such agreement shall be in full force and effect without breach
thereunder by Amkor Assembly & Test (Shanghai) Co., Ltd. Buyer and Seller shall
have entered into the "Transition Services Agreement" and such agreement shall
be in full force and effect without breach thereunder by Buyer.
8.7. Injunctions, Orders. No injunction, order or decree of any
Governmental Authority shall be in effect as of the Closing, and no lawsuit,
claim, proceeding or investigation shall be pending or threatened by or before
any Governmental Authority as of the Closing, which would restrain, prohibit or
make unlawful the transfer to Buyer, or the ownership and operation by Buyer, of
the Transferred Assets, or the assumption by Buyer of the Assumed Liabilities,
or invalidate or suspend any provision of any Operative Agreement.
8.8. CLOSING DOCUMENTS. Buyer shall have delivered to Seller the following
documents:
(a) a certificate of a duly authorized officer of Buyer, dated the
Closing Date, to the effect that Buyer's representations and warranties in this
Agreement are true and correct and that all actions required to be taken by
Buyer have been duly taken, as of the Closing Date; and
(b) a certificate of a director or the secretary or assistant
secretary of Buyer, dated the Closing Date, as to the continued existence of
Buyer, certifying the
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authorization of the execution of the certificate described in Section 8.8(a)
and the execution, delivery and performance of the Operative Agreements as of
the Closing Date.
8.9. EMPLOYEES. Buyer shall have arranged to employ, effective upon and
contingent upon the Closing and consistent with the terms and conditions of this
Agreement, all of the Regular Employees and, in this connection all Governmental
Actions shall have been taken or obtained by Buyer, in respect of the employment
of the Regular Employees.
ARTICLE IX. TERMINATION AND ABANDONMENT
9.1 METHODS OF TERMINATION. This Agreement may be terminated and the
transactions herein contemplated may be abandoned at any time:
(a) by mutual written consent of Buyer and Seller;
(b) by Buyer or Seller if this Agreement is not consummated on or
before June 15, 2004;
(c) by Buyer if as of the Closing Date any of the conditions
specified in Article VII hereof have not been satisfied; or
(d) by Seller if as of the Closing Date any of the conditions
specified in Article VIII hereof have not been satisfied.
9.2 PROCEDURE FOR AND UPON TERMINATION. The Party exercising any
termination right in Section 9.1 must first give at least 30 days' prior written
notice of such termination to the other Party. Such notice shall contain the
date that termination and abandonment will become effective. The other Party may
then cure any event creating such termination right if such event can be cured.
If there is no cure during such notice period, then termination and abandonment
shall become effective on the date set forth in the notice of termination. In
the event of termination and abandonment pursuant to Section 9.1(b)-(d), this
Agreement shall terminate and shall be abandoned, without further action by any
Party. If this Agreement is terminated as provided herein, each Party shall
either destroy or redeliver all documents and other material of the other Party
relating to the transactions contemplated hereby, whether obtained before or
after the execution hereof, to the other Party.
ARTICLE X. GENERAL MATTERS.
10.1. SURVIVAL.
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(a) Notwithstanding any investigation by the Parties, all representations,
and warranties made by the Parties under this Agreement or in any schedule,
document, certificate or other instrument delivered by or on behalf of the
Parties pursuant to this Agreement shall be made and relate only to the Date of
Execution and the Closing Date, but any claim for breach thereof shall continue
in full force and effect after the Date of Execution and after the Closing Date
for a period of twelve (12) months after the Closing Date, after which time they
shall cease; provided, however, that all representations and warranties relating
to the Assumed Liabilities shall survive the Closing Date until the expiration
of the applicable statute of limitation with respect thereto. For clarification,
any claim for breach of a representation or warranty that is filed with a court
having jurisdiction over both Parties and such subject matter within twelve (12)
months after the Closing Date (or within the applicable statute of limitation
period if such claim is for breach of a representation or warranty relating to
the Assumed Liabilities) shall survive until final judicial disposition of such
claim.
(b) Notwithstanding anything to the contrary herein, any provision of this
Agreement, including, but not limited to Sections 1.3 (Consideration), 10.1
(Survival), and 10.2 (Indemnification), which by its terms explicitly
contemplates the existence of a right or performance of an obligation for a
period of time beyond the Closing and/or termination of this Agreement, will
survive Closing and/or termination of the Agreement for such specified period.
In addition to the foregoing, the provisions of Sections 10.3 (Limitation of
Liability), 10.9 (Modification and Waiver), 10.10 (Governing Law), 10.12
(Assignment), 10.14 (No Third Party Beneficiaries), and 10.15 (Entire Agreement)
shall survive indefinitely.
10.2. INDEMNIFICATION.
(a) Indemnification by Seller: From the Closing Date until the third
anniversary of the Closing Date only, Seller shall fully indemnify, defend and
hold harmless Buyer and Buyer's Affiliates, and their respective officers,
directors, employees, representatives and agents (each, a "BUYER INDEMNIFIED
PARTY" and collectively, the "BUYER INDEMNIFIED PARTIES") from and against any
and all claims, liens, demands, actions, judgments, proceedings, liabilities
(whether accrued, absolute, contingent or otherwise) and reasonable associated
expenses (including reasonable attorney's fees) ("Claims"), provided that such
Claims (i) are brought by third parties against a Buyer Indemnified Party (or
Buyer Indemnified Parties), and (ii) directly arise from and relate to the time
period prior to the Closing, including, in cases of environmental claims, that
the basis for the claim is a Hazardous Substance existing on or under the
Premises prior to the Closing, and (iii) directly arise from and relate to a
violation of a Singapore Governmental Rule in effect on the Closing Date or any
other obligation of Seller on or prior to the Closing Date, and (iv) directly
arise from and relate to either (a) Seller's ownership or use of the Transferred
Assets, (b) Seller's performance of the Assumed Liabilities, (c) Seller's
leasing or use of the Premises, and/or (d) Seller's employment of any Employee,
(individually referred to as a "THIRD PARTY CLAIM AGAINST BUYER" and
collectively as, "THIRD PARTY CLAIMS AGAINST BUYER"). "HAZARDOUS SUBSTANCES"
means, without regard to amount and/or concentration, petroleum, petroleum
distillates, petroleum products, pesticides,
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radioactive materials and substances, friable asbestos as of Closing,
polychlorinated biphenyls ("PCBs"), polyurethane foam insulation, radon and any
materials or substances which are regulated under or defined as, or otherwise
included in the definition, of "hazardous substances", "hazardous wastes", or
"toxic substances" in any applicable Environmental Law, and constituents and
degradation products of any of the foregoing. "ENVIRONMENTAL LAW" shall mean, as
may be amended, any Singapore law, statute, ordinance, code, rule or regulation
relating to protection of the environment and/or governing the use, handling,
generation, treatment, recycling, storage, manufacture, transportation or
disposal of Hazardous Substances.
(b) Indemnification by Buyer: Until the third anniversary of the date on
which Seller knew or should have known about specific third party claims or
environmental matters, Buyer shall fully indemnify, defend and hold harmless
Seller and Seller's Affiliates, and their respective officers, directors,
employees, representatives and agents (each, a "SELLER INDEMNIFIED PARTY" and
collectively, the "SELLER INDEMNIFIED PARTIES") from and against any and all
Claims that (i) are brought by third parties against a Seller Indemnified Party
(or Seller Indemnified Parties), and (ii) directly arise from and relate to the
time period after the Closing, including, in cases of environmental claims, that
the basis for the claim is a Hazardous Substance existing on or under the
Premises after the Closing, and (iii) directly arise from and relate to a
violation of a Singapore Governmental Rule in effect after the Closing Date or
any other obligation of Buyer on or after the Closing Date, and (iv) directly
arise from and relate to either (a) Buyer's ownership or use of the Transferred
Assets, (b) Buyer's performance of the Assumed Liabilities, (c) Buyer's leasing
or use of the Premises, and/or (d) Buyer's employment of any Employee,
(individually referred to as a "THIRD PARTY CLAIM AGAINST SELLER" and
collectively as, "THIRD PARTY CLAIMS AGAINST SELLER").
(c) Procedure for Third Party Claim Indemnification.
(1) Promptly after receipt by an indemnified party of notice of a claim or
the commencement of any proceeding against it, such indemnified party will, if a
claim is to be made against an indemnifying party under such Section, give
notice in writing to the indemnifying party of the commencement of such claim,
but the failure to notify the indemnifying party will not relieve the
indemnifying party of any liability that it may have to any indemnified party,
except to the extent that the indemnifying party demonstrates that the defense
of such action is prejudiced by the indemnified party's failure to give such
notice.
(2) The indemnifying party will be entitled to participate in such Claim
and, to the extent that it wishes (unless (i) the indemnifying party is also a
party to such proceeding and the indemnified party determines in good faith that
joint representation would be inappropriate, or (ii) the indemnifying party
fails to provide reasonable assurance to the indemnified party of its financial
capacity to defend such proceeding and provide indemnification with respect to
such proceeding), to assume, by written notice thereof within ten (10) days of
transmittal of the notice of the Claim by the indemnified
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party, the defense of such proceeding with counsel satisfactory to the
indemnified party, provided, however, that the indemnifying party may not so
assume the defense if such Claim (A) may result in criminal proceedings,
injunctions or other equitable remedies in respect of the indemnified party or
its business; (B) may result in liabilities which, taken with other then
existing Claims under this Section 10.2, would not be fully indemnified
hereunder; (C) may have a material adverse effect on the business or financial
condition of the indemnified party after the Closing Date; (D) is for an alleged
amount of less than $25,000; or (E) upon petition by the indemnified party, if
an appropriate court rules that the indemnifying party failed or is failing to
vigorously prosecute or defend such Claim, in which events the indemnified party
shall assume the defense. If the indemnifying party assumes the defense of a
Claim by a third party, (i) no compromise or settlement of such claims may be
effected by the indemnifying party without the indemnified party's consent
unless (A) there is no finding or admission of any violation of any legal
requirement or any violation of the rights of any person and no effect on any
other claims that may be made against the indemnified party, and (B) the sole
relief provided is monetary damages that are paid in full by the indemnifying
party; and (iii) the indemnified party will have no liability with respect to
any compromise or settlement of such Claims effected without its consent. If
notice is given to an indemnifying party of the commencement of any Claim or
proceeding and the indemnifying party does not, within ten days after the
indemnified party's notice is given, give notice to the indemnified party of its
election to assume the defense of such proceeding, the indemnifying party will
be bound by any determination made in such proceeding or any compromise or
settlement effected by the indemnified party. A Claim for indemnification for
any matter not involving a third-party claim may be asserted by notice to the
party from whom indemnification is sought.
10.3. LIMITATION OF LIABILITY. Notwithstanding anything to the contrary
set forth in the Operative Agreements, unless this section is specifically and
expressly excluded from application to a specific Operative Agreement or
provision in an Operative Agreement, neither Seller nor Buyer shall be liable to
the other Party for any amounts with respect to the breach of an Operative
Agreement(s) unless and until such amounts shall exceed in the aggregate one
hundred thousand U.S. dollars (US$100,000) (the "LIMITATION AMOUNT") (in which
case Seller or Buyer, as applicable, shall only be liable to the other Party
with respect to the excess over the Limitation Amount); provided, however that
such limitation shall not be applicable with respect to Buyer's obligation to
pay to Seller the Purchase Price. There shall be no Seller or Buyer liability to
the other Party with respect to any such matter for individual amounts of less
than Twenty-Five Thousand U.S. Dollars (US$25,000) and such amounts shall not be
taken into account in determining whether the Limitation Amount has been
exceeded. Notwithstanding anything to the contrary set forth in the Operative
Agreements, unless this section is specifically and expressly excluded from
application to a specific Operative Agreement or a specific provision in an
Operative Agreement, (a) in no event shall Seller's cumulative liability to
Buyer, or Buyer's cumulative liability to Seller, exceed three million United
States Dollars (US$3,000,000) in the aggregate, provided, however that such
limitation shall not be applicable with respect to either (i) Buyer's obligation
to pay to Seller the Purchase Price or (ii) Seller's obligation to transfer to
Buyer good and
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marketable title of the Transferred Assets, free and clear of any and all Liens
(other than Permitted Liens), in accordance with this Agreement, and (b) neither
Seller nor Buyer shall be responsible for any indirect, incidental, punitive,
special or consequential damages whatsoever, including loss of profits or
goodwill, business interruptions or claims of customers, even if advised of the
possibility of such damages.
10.4. PUBLIC ANNOUNCEMENTS. The Confidentiality Agreement is hereby
incorporated by reference and its provisions shall be deemed to apply to this
Agreement and the other Operative Agreements such that the existence of such
agreements and any information disclosed under such agreements shall be subject
to the provisions of the Confidentiality Agreement. For six (6) months after the
Closing Date, all public announcements relating to this Agreement or the
transactions contemplated hereby shall be made only after consultation between
the Parties, except for disclosures by either Party that in the opinion of
counsel for such Party are required by law, rule or regulation. Any disclosures
to customers in connection with commercial relationships shall not reveal the
Purchase Price of this Agreement. Notwithstanding the foregoing, either Party
shall have the right, in its sole discretion, to make such disclosures as it may
deem necessary or advisable to any Governmental Authority. In the event of a
breach or anticipatory breach of this Section 10.4. by either Party, the other
Party shall be entitled, in addition to any and all other remedies available at
law or in equity, to preliminary and permanent injunctive relief and specific
performance without proving damages.
10.5. COSTS. Each Party shall be responsible for the costs and expenses
incurred by it in the negotiation, execution and delivery of the Operative
Agreements and, except as otherwise provided elsewhere in such agreements, the
consummation of the transactions contemplated hereby and thereby.
10.6. DUE DILIGENCE. Buyer has engaged in the entire due diligence effort
it deemed appropriate prior to executing this Agreement. The sale of the
Transferred Assets is based solely upon the results of that due diligence and
there has been no reliance upon the representations or statements of Seller,
other than as set forth in Article VI.
10.7. DISCHARGE OF ASSUMED LIABILITIES. Prior to the Closing, Seller shall
discharge the Assumed Liabilities in accordance with their terms and Seller
agrees that Buyer shall have no liability for any failure of Seller to so
discharge the Assumed Liabilities in accordance with their terms. Following the
Closing, Buyer shall discharge the Assumed Liabilities in accordance with their
terms and Buyer agrees that Seller shall have no liability for any failure of
Buyer to so discharge the Assumed Liabilities in accordance with their terms.
10.8. ACCESS TO BOOKS, RECORDS AND EMPLOYEES. After the Closing Date,
Buyer shall permit Seller reasonable access to any books, records, and employees
relating to the period prior to the Closing and transferred by Seller to Buyer
pursuant to this Agreement. Such access shall be during normal business hours or
as the Buyer and Seller may otherwise agree. Prior to such access, Seller shall
provide Buyer at least 2 Business Days' advance notice.
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10.9. MODIFICATION AND WAIVER. No modification or waiver of any provision
of this Agreement and no consent by either Party to any departure therefrom
shall be effective unless in a writing referencing the particular section of
this Agreement to be modified or waived and signed by a duly authorized
signatory of each Party, and the same will only then be effective for the period
and on the conditions and for the specific instances and purposes specified in
such writing.
10.10. GOVERNING LAW. This Agreement has been delivered at and shall be
deemed to have been made in Singapore, and all matters arising from or relating
in any manner to the subject matter of this Agreement shall be interpreted and
construed, and the rights and liabilities of the Parties determined, in
accordance with the laws of Singapore applicable to agreements executed,
delivered and performed within Singapore, without regard to the principles of
conflicts of laws thereof. As part of the consideration for value received, each
of the Parties hereby consents to the exclusive jurisdiction of any court
located within Singapore with respect to all matters arising from or relating in
any manner to the subject matter of this Agreement. With respect to all matters
arising from or relating in any manner to the subject matter of this Agreement,
each of the Parties hereby: (i) waives trial by jury, (ii) waives any objection
to Singapore venue of any action instituted hereunder (whether on the basis of
forum non conveniens or otherwise), and (iii) consents to the granting of such
legal or equitable relief as is deemed appropriate by any aforementioned court.
Any legal or other action related to a breach of this Agreement must be
commenced no later than one (1) year from the date on which the complaining
Party first became aware, or reasonably should have become aware, of the facts
or circumstances giving rise to the action.
10.11. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given and shall be effective (a)
when delivered by messenger or courier, or (b) five days after deposit for
mailing by registered or certified mail, postage prepaid, return receipt
requested, or (c) within one Business Day when transmitted by telecopy, provided
that sender has a report showing transmission of such telecopy, as follows:
(a) if to Seller, to:
IBM Singapore Pte Ltd
0 Xxxxxx Xxxxxxxx Xxxx Xxxxxxx 0
Xxxxxxxxx 000000
Attention: General Manager
Telecopy: (00)0000-0000
with a copy at the same address to:
Attention: General Counsel ASEAN/SA
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Telecopy: (00)00000000
(b) if to Buyer, to:
Amkor Technology Singapore Pte. Ltd.
0 Xxxx Xxxxx Xxxx, Xxxxxxxx
Xxxxxxxxx, 000000
Attention: To be provided
Telecopy: To be provided
with a copy to:
Amkor Technology, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Attention: General Counsel
Fax:(000)000-0000
or to such Person or address as either of the Parties shall hereafter designate
to the other from time to time by similar written notice.
10.12. ASSIGNMENT. This Agreement shall be binding upon, and inure to the
benefit of, and be enforceable by, the successors and assigns of the Parties;
provided, that a Party may not assign its rights hereunder without the written
consent of the other Party.
10.13. COUNTERPARTS. This Agreement may be executed by the Parties hereto
in one or more counterparts, each of which shall be an original and all of which
shall constitute one and the same instrument. Each counterpart may be signed and
executed by the Parties and transmitted by facsimile and shall be as valid and
effectual as if executed as an original. In the case of execution by way of
counterparts, this Agreement shall not be deemed to be concluded until the last
of such counterparts shall have been executed.
10.14. NO THIRD PARTY BENEFICIARIES. This Agreement is for the sole
benefit of the Parties and their permitted successors and assigns and nothing
herein expressed or implied shall give or be construed to give any Person, other
than the Parties and such permitted successors and assigns, any legal or
equitable rights hereunder. Accordingly, the Contracts (Rights of Third Parties)
Act (Chapter 53B) of Singapore shall not under any circumstances apply to this
Agreement and any person who is not a party to this Agreement (whether or not
such person shall be named, referred to, or otherwise identified, or form part
of a class of persons so named, referred to or identified, in this Agreement)
shall have no right whatsoever under the Contracts (Rights of Third Parties) Act
(Chapter 53B) of Singapore to enforce this Agreement or any of its terms.
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10.15. ENTIRE AGREEMENT. This Agreement, together with the other Operative
Agreements comprise the entire agreement between the Parties with respect to the
subject matter hereof and thereof and supersede all other contemporaneous
agreements and all prior agreements, understandings and representations, oral or
written, between Buyer and Seller relating hereto or thereto.
10.16 TIME OF THE ESSENCE. Any time, date or period mentioned in any
provision of this Agreement may be extended by mutual agreement between the
Parties but as regards any time, date or period originally fixed and not
extended or any time, date or period so extended as aforesaid, time shall be of
the essence.
10.17 BUSINESS CAPACITY. The Parties agree and acknowledge that they have
entered into this Agreement, and will undertake the transactions contemplated
herein, as part of, or in the course of, their business activity, and not as
consumers (including for purposes of the Consumer Protection (Fair Trading) Act
of Singapore).
*******
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized signatories as of the date and year first above
written.
IBM SINGAPORE PTE LTD
By: /s/ Xxxxxxxx Xxx
---------------------------------
Name: XXXXXXXX XXX
Title: MANAGING DIRECTOR
AMKOR TECHNOLOGY SINGAPORE PTE. LTD.
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: XXXX XXXXXXX
Title: ATTORNEY IN FACT
[Signature page to Asset Purchase Agreement-Singapore]
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Exhibit to Asset Purchase Agreement
Exhibit A: Assignment and Assumption Agreement
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Exhibit A
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT dated as of ___________, 2004 (this
"AGREEMENT"), between Amkor Technology Singapore Pte. Ltd., a Singapore
corporation ("BUYER"), and IBM Singapore Pte Ltd, a Singapore corporation
("SELLER")
W I T N E S S E T H:
WHEREAS Buyer and Seller have entered into an Asset Purchase
Agreement dated as of May 17, 2004 (the "ASSET PURCHASE AGREEMENT"), providing
for, among other things, the purchase by Buyer of the Transferred Assets from
Seller; and
WHEREAS, in conjunction with such purchase, Seller desires to sell,
transfer, convey, assign and deliver to Buyer all of Seller's rights, title and
interest in and to the Assumed Liabilities.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and subject to and on the terms and conditions
herein set forth, the parties hereto agree as follows:
1. Defined Terms. Terms defined in the text of this Agreement shall
have such meaning throughout this Agreement.
2. Other Terms. All capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Asset Purchase Agreement.
Nothing contained herein shall be deemed to alter or amend the terms and
provisions of the Asset Purchase Agreement, and in the event of any conflict
between the terms and provisions of this Agreement and the Asset Purchase
Agreement, the terms and provisions of the Asset Purchase Agreement shall be
deemed to govern and be controlling in all circumstances.
3. Assignment. Seller hereby irrevocably sells, transfers, conveys,
assigns and delivers to Buyer all of its rights, title and interest in and to
the Assumed Liabilities.
4. Assumption. Buyer does hereby accept such sale, transfer,
conveyance, assignment and delivery of all of Seller's right, title and interest
in and to the Assumed Liabilities by Seller and assumes all obligations and
liabilities arising thereunder following the Closing.
5. Effective time. The assignment by Seller, and the acceptance
thereof by Buyer, of the Assumed Liabilities, pursuant to this Agreement, shall
be effective as of the date hereof.
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6. Non contravention. Certain of the Assumed Liabilities may require
the consent of third parties to any assignment. Such assignments to Buyer are
made subject to the obtaining of such consents and shall be effective as of the
date of such consent. The execution of this Agreement shall not be interpreted,
and is not intended to be interpreted, as any action taken by Seller that would
be contrary to the terms and conditions of any contract requiring the consent of
any third party to such assignment. Buyer and Seller shall fully cooperate with
each other in an attempt to obtain such consents, as set forth in the Asset
Purchase Agreement.
7. Notices. All notices and other communications hereunder shall be
as set forth in the Asset Purchase Agreement.
8. Amendment. This Agreement may be amended, modified or
supplemented, and any provision hereof may be waived, only by written agreement
of the parties hereto signed by an authorized representative of each party.
9. Waivers. Any failure of a party to comply with any obligation,
agreement or condition herein may be waived by the other party; provided, that
any such waiver may be made only by a written instrument signed by the party
granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, agreement or condition shall not operate as a
waiver of, or estoppel with respect to, any subsequent or other failure; and
provided further that no waiver by a party hereto of any breach or default by
the other party under this Agreement shall be deemed a waiver of any other
previous breach or default or any thereafter occurring.
10. Entire Agreement. This Agreement, together with the Asset
Purchase Agreement (including any exhibits and schedules), embody the entire
understanding of the parties hereto in respect of the subject matter contained
herein. This Agreement supersedes all contemporaneous and prior agreements and
understandings between the parties with respect to such subject matter.
11. Headings. The headings contained in this Agreement are for
reference purposes only and shall not limit or otherwise affect the meaning or
interpretation of this Agreement.
12. Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
Singapore without reference to its principles of conflict of law.
13. Severability. If any one or more provisions contained in this
Agreement, or the application of such provision to any person or circumstance,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
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14. Third Party Actions. Seller and Buyer hereby agree to cooperate
in defending or prosecuting any claims or litigation relating to the transfer of
title as provided herein, and to make available and furnish appropriate
documents and testimony in connection therewith.
15. Seller's Obligations. Seller hereby covenants and agrees to
execute and deliver all such other further instruments of conveyance, assignment
and transfer and all such other notices, releases, acquittance, powers of
attorney and other documents, and do all such other acts and things as may be
necessary to more fully convey and assign to Buyer, or its successors or
assigns, all right, title and interest in and to the Assumed Liabilities
conveyed, assigned and transferred to or acquired by Buyer pursuant to this
Agreement, including, without limitation, filings with any governmental entity,
authority or instrumentality, domestic or foreign.
16. No Third-Party Beneficiaries. This Agreement is not intended and
shall not be deemed to confer upon or give any person except the parties hereto
and the parties to any assigned Contracts in the Assumed Liabilities and their
respective successors and permitted assigns any remedy, claim, liability,
reimbursement, cause of action or other right under or by reason of this
Agreement and a person who is not a party to this Agreement has no right under
the Contracts (Rights of Third Parties) Act, Chapter 53B to enforce any term of
this Agreement.
17. Assignment. Neither this Agreement nor any of the rights or
obligations hereunder shall be assigned by either party hereto without the prior
written consent of the other party, such consent not to be unreasonably
withheld. Any purported assignment of this Agreement other than in accordance
with this paragraph 17 shall be null and void and of no force or effect.
18. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument and shall become a binding
Agreement when one or more of the counterparts have been signed by each of the
parties and delivered to the other party.
[remainder of page left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment
and Assumption Agreement to be executed by their respective officers thereunto
duly authorized as of the day and year first above written.
AMKOR TECHNOLOGY SINGAPORE PTE. LTD.
By: _________________________________
Name: _______________________________
Title: ______________________________
IBM SINGAPORE PTE LTD
By: _________________________________
Name: _______________________________
Title: ______________________________
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Schedule of Disclosure and Exceptions
to the Asset Purchase Agreement
by and among Amkor Technology Singapore Pte Ltd and
IBM Singapore Pte Ltd
This is the Schedule of Disclosure and Exceptions (including the Schedules,
Sub-schedules, and Exhibits hereto, the "Disclosure Schedule") being provided in
conjunction with the Asset Purchase Agreement dated as of May 17,2004 by and
among Buyer and Seller, to which this Disclosure Schedule is attached and
constitutes formal disclosure to Buyer by Seller for the purposes of the said
agreement of the facts and circumstances which are or may be inconsistent with
or constitute exceptions to the representations, warranties, undertakings and
covenants referred to in the agreement (collectively the "WARRANTIES") or which
otherwise give or may give rise to a claim under the agreement by Buyer. Such
facts and circumstances will be deemed to qualify the Warranties accordingly.
Unless otherwise indicated, all capitalized terms used in this Disclosure
Schedule shall have the meaning provided in the above referenced Asset Purchase
Agreement.
References in this Disclosure Schedule to paragraphs, headings and numbers
shall, unless the context otherwise requires, be to those headings and numbered
paragraphs in the agreement and shall be for convenience only and shall not
alter the construction of this Disclosure Schedule nor in any way limit the
effect of any of the disclosures, all of which are made against the Warranties
as a whole. The contents of all documents annexed to this Disclosure Schedule or
referred to herein shall, in the event of any inconsistency, prevail over any
summaries of such documents contained in this Disclosure Schedule. For
convenience only, certain disclosures have been made by reference to specified
Warranties. However, each such disclosure shall be taken to qualify all the
Warranties to which it is capable of relating. Each such disclosure is given
without prejudice to the generality or effectiveness of any other disclosure.
Where brief particulars only of a matter are set out or referred to in this
Disclosure Schedule, or a document is referred to but not attached, full
particulars of the matter and the full contents of the document are deemed to be
disclosed and it is assumed that Buyer does not require any further particulars.
Buyer confirms that all matters disclosed in this Disclosure Schedule have been
raised in advance and that Buyer has been given the opportunity for further
enquiry and that Buyer has carried out such further enquiries to its
satisfaction. Accordingly, Seller is deemed to have adequately disclosed all the
matters raised or referred to in this Disclosure Schedule and shall not be in
breach of any of the Warranties insofar as it relates to the matters so
disclosed.
In this Disclosure Schedule, unless specified otherwise: (a) the rule known as
the ejusdem generis rule shall not apply and accordingly general words
introduced by the word "other" shall not be given a restrictive meaning by
reason of fact that they are preceded by words indicating a particular class of
acts, matters or things; and (b) general words
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shall not be given a restrictive meaning by reason of the fact that they are
followed by particular examples intended to be embraced by the general words.
By way of general disclosure, the following matters are disclosed or deemed
disclosed to Buyer and Buyer is deemed aware of each and every matter disclosed
or referred to in the following:
(a) The contents of the Operative Agreements and all transactions
referred to therein.
(b) All matters which would be apparent from an inspection of the
Transferred Assets by a prudent purchaser and/or its professional
advisors.
(c) The contents and enclosures of all documents which are annexed
hereto and all other documents that have been made available to
Buyer or Buyer's professional advisors.
(d) The contents of all correspondence between the Parties' respective
counsels.
Any disclosures made under the headings of one section of this Disclosure
Schedule may apply to or qualify as disclosures made under one or more of the
other sections if such disclosures could reasonably be read to be in response to
such other sections. Nothing in this Disclosure Schedule shall constitute an
admission of any liability or obligation of Seller to any third party nor an
admission against Seller's interest.
Those schedules which by their nature must be updated to reflect the facts as of
the Closing Date will be updated by the Seller to reflect changed circumstances
between the Date of Execution and the Closing Date.
This Disclosure Schedule may contain statements which are not statements of
historical facts but statements relating to the expected performance and
prospects in relation to the Transferred Assets and the business related thereto
(including statements as to revenue and profitability, expected growth in
demand, expected industry trends, anticipated completion or start-up dates for
expansion projects), and are qualified by or containing words such as "expects",
"believes", "plans", "intends", "estimates", "anticipates", "may", "will",
"could" and similar words ("FORWARD LOOKING STATEMENTS").
Forward Looking Statements involve known and unknown risks, uncertainties and
other factors that may cause actual results, performance or achievements of the
Transferred Assets (and the business related thereto) to be materially different
from any future results, performance or achievements expressed or implied by
these Forward Looking Statements. These risks, uncertainties and other factors
include, among others:
(a) changes in political, social and economic conditions and the regulatory
environment in Singapore, the region and elsewhere;
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(b) changes in currency exchange rates;
(c) anticipated growth strategies and expected internal growth;
(d) changes in fees for services;
(e) changes in the availability and prices of products needed to operate the
Transferred Assets (and the business related thereto);
(f) changes in customer preferences, competitive conditions and the ability to
compete under these conditions;
(g) changes in future capital needs and the availability of financing and
capital to fund these needs;
(h) business risks; and
(i) other factors beyond Buyer's/Seller's control.
Given the risks and uncertainties that may cause the actual future results,
performance or achievements of the Transferred Assets (and the business related
thereto) to be materially different from that expected, expressed or implied by
the Forward Looking Statements provided to Buyer (including buyer's professional
advisers), Seller is not representing or warranting that the actual future
results, performance or achievements of the Transferred Assets (and the business
related thereto) will be as indicated in the Forward Looking Statements.
Further, there is no obligation of Seller to update any of the Forward Looking
Statements to reflect future developments, events or circumstances.
Without prejudice to the generality of the foregoing, Seller discloses the
matters set out in Appendix A hereto.
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SCHEDULES TO THE ASSET PURCHASE AGREEMENT
Disclosure Schedule
Schedule A Additional Permitted Liens
Schedule 1.1. Transferred Asset Listing
Sub Schedule 1.1.A. Property, Plant and Equipment
Sub Schedule 1.1.B. Inventory and Work in Process
Sub Schedule 1.1.C. Other Transferred Assets
Schedule 1.2. Excluded Assets
Schedule 1.4. Assumed Liabilities
Sub Schedule 1.4.A. Contracts to be Assumed Liabilities
Sub Schedule 1.4.B. Other Assumed Liabilities
Schedule 2.2(a)1 Conveyances, Transfers, Assignments,
and Documents of Title
Schedule 2.2(a)2 Consents and Licenses
Schedule 3.1 Allocation Statement
Schedule 4.1.A. Seller's Required Consents to Assignment, if any
Schedule 4.1.B. Seller's Required Consents to Novation, if any
Schedule 4.2.a.1. Listing of Regular Employees
Schedule 4.2.a.2. Listing of Fixed Term Hires
Schedule 4.2.(b). Summary of Buyer's Planned Employment Terms and
Benefit Plans
Schedule 7.3(a) Governmental Actions
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