Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
OF CHIPPAC, INC.
A CALIFORNIA CORPORATION
AND
CHIPPAC, INC.
A DELAWARE CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of June 13, 2000 (the
"Agreement") is between ChipPAC, Inc., a California corporation ("ChipPAC
--------- -------
California"), and ChipPAC, Inc., a Delaware corporation ("ChipPAC Delaware").
---------- ----------------
ChipPAC California and ChipPAC Delaware are sometimes referred to herein as the
"Constituent Corporations."
------------------------
RECITALS
A. ChipPAC California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 180,000,000
shares of Class A Common Stock (the "Class A Common Stock"), 180,000,000 shares
--------------------
of Class B Common Stock (the "Class B Common Stock"), 20,000,000 shares of Class
--------------------
L Common Stock (the "Class L Common Stock"), 10,000 shares of Class A
--------------------
Convertible Preferred Stock (the "Class A Preferred Stock"), 105,000 shares of
-----------------------
Class B Preferred Stock (the "Class B Preferred Stock"). ChipPAC California
-----------------------
intends to authorize and issue shares of Class C Preferred Stock (the "Class C
-------
Preferred Stock") to Intersil Corporation. Certain individuals and entities
---------------
(the "Optionees") own in the aggregate options to purchase 6,013,500 shares of
---------
Class A Common Stock ("Options"). The Class A Common Stock, Class B Common
-------
Stock, Class L Common Stock, Class A Preferred Stock and the Class B Preferred
Stock, the Class C Preferred Stock and Options are collectively referred to
herein as the "Equity Interests."
----------------
B. ChipPAC Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and is a wholly-owned subsidiary of ChipPAC
California.
C. The Board of Directors of ChipPAC California and ChipPAC Delaware have
determined that, for the purpose of effecting the plan of reorganization, it is
advisable and in the best interests of ChipPAC California, its stockholders, and
ChipPAC Delaware that ChipPAC California merge with and into ChipPAC Delaware
upon the terms and conditions herein provided.
D. The respective Boards of Directors of ChipPAC California and ChipPAC
Delaware have approved this Agreement.
E. The terms of this Agreement were approved by the vote of a number of
shares of each class of stock of ChipPAC California which equaled or exceeded
the vote required.
F. The terms of this Agreement were approved by the sole stockholder of
ChipPAC Delaware.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, ChipPAC California and ChipPAC Delaware hereby agree, subject to
the terms and conditions hereinafter set forth as follows:
I
MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
------
Delaware General Corporation Law and the California General Corporation Law,
ChipPAC California shall be merged with and into ChipPAC Delaware (the
"Merger"), the separate existence of ChipPAC California shall cease and ChipPAC
------
Delaware shall survive the Merger and shall continue to be governed by the laws
of the State of Delaware, and ChipPAC Delaware shall be, and is herein sometimes
referred to as, the "Surviving Corporation," and the name of the Surviving
---------------------
Corporation shall be ChipPAC, Inc.
1.2 Filing and Effectiveness. The Merger shall become effective
------------------------
immediately prior to the effectiveness of ChipPAC-Delaware's registration
statement on Form S-1 (Reg. No. 333-39428); provided, however, that the Merger
shall not become effective until an executed Certificate of Merger or an
executed, acknowledged and certified counterpart of this Agreement meeting the
requirements of the Delaware General Corporation Law and the California General
Corporation Law shall have been filed with the Secretary of State of the State
of Delaware.
The date and time when the Merger shall become effective, as aforesaid, is
herein called the "Effective Date of the Merger."
----------------------------
1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
--------------------
separate existence of ChipPAC California shall cease and ChipPAC Delaware, as
the Surviving Corporation, (i) shall continue to possess all of its assets,
rights, powers and property as constituted immediately prior to the Effective
Date of the Merger, (ii) shall be subject to all actions previously taken by its
and ChipPAC California's Boards of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of ChipPAC
California in the manner as more fully set forth in Section 259 of the Delaware
General Corporation Law, (iv) shall continue to be subject to all of its debts,
liabilities and obligations as constituted immediately prior to the Effective
Date of the Merger, and (v) shall succeed, without other transfer, to all of the
debts, liabilities and obligations of ChipPAC California in the same manner as
if ChipPAC Delaware had itself incurred them, all as more fully provided under
the applicable provisions of the Delaware General Corporation Law.
2
II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Amended and Restated Certificate of
----------------------------
Incorporation of ChipPAC Delaware (the "Certificate of Incorporation")
----------------------------
substantially in the form of Exhibit A attached hereto shall be the Certificate
---------
of Incorporation of the Surviving Corporation until duly amended in accordance
with the provisions thereof and applicable law.
2.2 Bylaws. The Amended and Restated Bylaws of ChipPAC Delaware
------
substantially in the form of Exhibit B attached hereto shall be the Bylaws of
---------
the Surviving Corporation until duly amended in accordance with the provisions
thereof and applicable law.
2.3 Directors and Officers. The directors and officers of ChipPAC
----------------------
Delaware immediately prior to the Effective Date of the Merger shall be the
directors and officers of the Surviving Corporation until their respective
successors shall have been duly elected and qualified or until as otherwise
provided by law, or the Certificate of Incorporation of the Surviving
Corporation or the Bylaws of the Surviving Corporation.
III
MANNER OF CONVERSION OF STOCK
3.1 Class A Common Stock. Upon the Effective Date of the Merger, each
--------------------
share of Class A Common Stock of ChipPAC California issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by the Constituent Corporations, the holder of such shares or any other person,
be changed and converted into and exchanged for one fully paid and nonassessable
share of Class A Common Stock, $0.01 par value, of the Surviving Corporation
("ChipPAC Delaware Class A Common Stock").
-------------------------------------
3.2 Class B Common Stock. Upon the Effective Date of the Merger, each
--------------------
share of Class B Common Stock of ChipPAC California issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by the Constituent Corporations, the holder of such shares or any other person,
be changed and converted into and exchanged for one fully paid and nonassessable
share of ChipPAC Delaware Class B Common Stock (the "ChipPAC Delaware Class B
------------------------
Common Stock," and together with the ChipPAC Delaware Class A Common Stock, the
------------
"ChipPAC Delaware Common Stock").
-----------------------------
3.3 Class L Common Stock. Upon the Effective Date of the Merger, each
--------------------
share of Class L Common Stock of ChipPAC California issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by the Constituent Corporations, the holder of such shares or any other person,
be changed and converted into and exchanged for a number of fully paid and
nonassessable shares of ChipPAC Delaware Class A Common Stock, $0.01 par value
equal to the product of (A) [insert pre-IPO stock split number] multiplied by
(B) the sum of (i) one plus (ii) the quotient of (x) the Unreturned Original
Cost plus Unpaid Yield of such share of Class L
3
Common Stock divided by (y) the price per share of the ChipPAC Delaware Common
Stock paid by investors in the Public Offering.
For purposes of this Section 3.3, the following terms shall have the
following meanings:
"Distribution" means each distribution made by ChipPAC California to
------------
holders of capital stock, whether in cash, property, or securities of ChipPAC
California and whether by dividend, liquidating distributions or otherwise;
provided that neither of the following shall be a Distribution: (a) any
redemption or repurchase by ChipPAC California of any capital stock held by an
employee, director or former employee of ChipPAC California or any of its
subsidiaries or (b) any recapitalization or exchange of any capital stock, or
any subdivision (by stock split, stock dividend or otherwise) or any combination
(by stock split, stock dividend or otherwise) of any outstanding capital stock.
"Original Cost" of each share of Class L Common Stock shall be equal to
-------------
$9.00 per share (as proportionally adjusted for all stock splits, stock
dividends and other recapitalizations affecting the Class L Common Stock).
"Public Offering" means ChipPAC-Delaware's initial public offering of
---------------
common stock pursuant to a registration statement on Form S-1 (Reg. No. 333-
39428).
"Unpaid Yield" of any share of Class L Common Stock means an amount equal
------------
to the excess, if any, of (a) the aggregate Yield accrued on such share, over
(b) the aggregate amount of Distributions made by ChipPAC California that
constitute payment of Yield on such share.
"Unreturned Original Cost" of any share of Class L Common Stock means an
------------------------
amount equal to the excess, if any, of (a) the Original Cost of such share, over
(b) the aggregate amount of Distributions made by ChipPAC California that
constitute a return of the Original Cost of such share.
"Yield" means, with respect to each outstanding share of Class L Common
-----
Stock for each calendar quarter, the amount accruing on such share each day
during such quarter at the rate of 12% per annum of the sum of (a) such share's
Unreturned Original Cost, plus (b) Unpaid Yield thereon for all prior quarters.
In calculating the amount of any Distribution to be made during a calendar
quarter, the portion of a Class L Common Stock share's Yield for such portion of
such quarter elapsing before such Distribution is made shall be taken into
account.
3.4 Class A Preferred Stock. Upon the Effective Date of the Merger, each
-----------------------
share of Class A Preferred Stock issued and outstanding immediately prior
thereto shall, by virtue of the Merger and without any action by the Constituent
Corporations, the holder of such shares or any other person, be changed and
converted into and exchanged for one fully paid and nonassessable share of Class
A Preferred Stock, $0.01 par value, of the Surviving Corporation ("ChipPAC
-------
Delaware Class A Preferred Stock").
--------------------------------
4
3.5 Class B Preferred Stock. Upon the Effective Date of the Merger, each
-----------------------
share of Class B Preferred Stock issued and outstanding immediately prior
thereto shall, by virtue of the Merger and without any action by the Constituent
Corporations, the holder of such shares or any other person, be changed and
converted into and exchanged for one fully paid and nonassessable share of Class
B Preferred Stock, $0.01 par value, of the Surviving Corporation ("ChipPAC
-------
Delaware Class B Preferred Stock").
--------------------------------
3.6 Class C Preferred Stock. Upon the Effective Date of the Merger, each
-----------------------
share of Class C Preferred Stock issued and outstanding immediately prior
thereto shall, by virtue of the Merger and without any action by the Constituent
Corporations, the holder of such shares or any other person, be changed and
converted into and exchanged for one fully paid and nonassessable share of Class
C Preferred Stock, $0.01 par value, of the Surviving Corporation ("ChipPAC
-------
Delaware Class C Preferred Stock").
--------------------------------
3.7 Options.
-------
(2) Upon the Effective Date of the Merger, the Surviving Corporation
shall assume each Option and all employee benefit plans of ChipPAC
California. Each outstanding and unexercised option or other right to
purchase or security convertible into ChipPAC California Class A Common
Stock shall become a like option or right to purchase or a security
convertible into ChipPAC Delaware Common Stock on the basis of one share of
ChipPAC Delaware Common Stock for each share of ChipPAC California Class A
Common Stock issuable pursuant to any such option, stock purchase right or
convertible security, on the same terms and conditions and at the exercise
price per share equal to the exercise price applicable to any such ChipPAC
California option, stock purchase right or convertible security at the
Effective Date of the Merger.
(3) A number of shares of ChipPAC Delaware Class A Common Stock shall
be reserved for issuance upon the exercise of options, stock purchase
rights or convertible securities equal to the number of shares of ChipPAC
California Class A Common Stock so reserved immediately prior to the
Effective Date of the Merger.
3.7 ChipPAC Delaware Common Stock. Upon the Effective Date of the Merger,
-----------------------------
each share of common stock, $0.01 par value, of ChipPAC Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by ChipPAC Delaware, the holder of such shares or any other person,
be canceled and returned to the status of authorized but unissued shares.
3.8 Exchange of Certificates.
------------------------
5
(4) After the Effective Date of the Merger, each holder of an
outstanding certificate representing shares of Class A Common Stock, Class
B Common Stock or Class L Common Stock may, at such stockholder's option,
surrender the same for cancellation to a transfer agent to be designated by
ChipPAC Delaware as exchange agent (the "Exchange Agent"), and each such
--------------
holder shall be entitled to receive in exchange therefor a certificate or
certificates representing the number of shares of ChipPAC Delaware Class A
or Class B Common Stock into which such holders' shares of Class A Common
Stock, Class B Common Stock or Class L Common Stock were converted as
herein provided. Unless and until so surrendered, each outstanding
certificate theretofore representing shares of Class A Common Stock, Class
B Common Stock or Class L Common Stock shall be deemed for all purposes to
represent the number of whole shares of ChipPAC Delaware Class A or Class B
Common Stock in to which such shares of Class A Common Stock, Class B
Common Stock or Class L Common Stock were converted in the Merger.
(5) After the Effective Date of the Merger, each holder of an
outstanding certificate representing shares of Class A Preferred Stock,
Class B Preferred Stock or Class C Preferred Stock may, at such
stockholder's option, surrender the same for cancellation to ChipPAC
Delaware, and each such holder shall be entitled to receive in exchange
therefor a certificate or certificates representing the number of shares of
ChipPAC Delaware Class A Preferred Stock, ChipPAC Delaware Class B
Preferred Stock or ChipPAC Delaware Class C Preferred Stock into which such
holders' shares of Class A Preferred Stock, Class B Preferred Stock, or
Class C Preferred Stock respectively, were converted as herein provided.
Unless and until so surrendered, each outstanding certificate theretofore
representing shares of Class A Preferred Stock or Class B Preferred Stock
or Class C Preferred Stock shall be deemed for all purposes to represent
the number of whole shares of ChipPAC Delaware Class A Preferred Stock,
ChipPAC Delaware Class B Preferred Stock or ChipPAC Delaware Class C
Preferred Stock in to which such shares of Class A Preferred Stock, Class B
Preferred Stock or Class C Preferred Stock were converted in the Merger.
(6) The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any shares of stock represented by
such outstanding certificate shall, until such certificate shall have been
surrendered for transfer or conversion or otherwise accounted for to the
Surviving Corporation or the Exchange Agent, have and be entitled to
exercise any voting and other rights with respect to and to receive
dividends and other distributions upon the shares of ChipPAC Delaware
Common Stock represented by such outstanding certificate as provided above.
(7) Each certificate representing ChipPAC Delaware Common Stock
ChipPAC Delaware Class A Preferred Stock, ChipPAC Delaware Class B
Preferred Stock or ChipPAC Delaware Class C Preferred Stock so issued in
the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of ChipPAC California
so converted and given in exchange therefor, unless otherwise determined by
the Board of Directors of the Surviving Corporation in compliance with
applicable laws.
6
(8) If any certificate for shares of ChipPAC Delaware stock is to be
issued in the name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of issuance
thereof that the certificate so surrendered shall be properly endorsed and
otherwise in proper form for transfer, that such transfer otherwise be
proper and that the person requesting such transfer pay to ChipPAC Delaware
or the Exchange Agent any transfer or other taxes payable by reason of the
issuance of such new certificate in the name other than that of the
registered holder of the certificate surrendered or establish to the
satisfaction of ChipPAC Delaware that such tax has been paid or is not
payable.
IV
GENERAL
4.1 Further Assurances. From time to time, as and when required by
------------------
ChipPAC Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of ChipPAC California such deeds and other instruments and
there shall be taken or caused to be taken by ChipPAC Delaware and ChipPAC
California such further and other actions, as shall be appropriate or necessary
in order to vest or perfect in or conform of record or otherwise by ChipPAC
Delaware the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of ChipPAC
California and otherwise to carry out the purposes of this Agreement, and the
officers and directors of ChipPAC Delaware are fully authorized in the name and
on behalf of ChipPAC California or otherwise to take any and all such action and
to execute and deliver any and all such deeds and other instruments.
4.2 Abandonment. At any time before the filing of this Agreement with the
-----------
Secretary of State of the State of Delaware, this Agreement may be terminated
and the Merger may be abandoned for any reason whatsoever by the Board of
Directors of either ChipPAC California or ChipPAC Delaware, or both,
notwithstanding the approval of this Agreement by the shareholders of ChipPAC
California or by the sole stockholder of ChipPAC Delaware, or by both.
4.3 Amendment. The Boards of Directors of the Constituent Corporations
---------
may amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretary of State of Delaware, provided
that an amendment made subsequent to the adoption of this Agreement by the
stockholders of either Constituent Corporation shall not: (1) alter or change
the amount or kind of shares, securities, cash, property and/or rights to be
received in exchange for or on conversion of all or any of the shares of any
class or series thereof of such Constituent Corporation (except for any
alterations or changes relating to the authorization, adoption, issuance or
conversion of the Class C Preferred Stock of ChipPAC Delaware or ChipPAC
California), (2) alter or change any term of the Certificate of Incorporation of
the Surviving Corporation to be effected by the Merger (except for any
alterations or changes relating to the authorization, adoption, issuance or
conversion of the Class C Preferred Stock of ChipPAC Delaware or ChipPAC
California), or (3) alter or change any of the terms and conditions of this
Agreement if such alteration or change would adversely affect the holders of any
class of shares or series thereof of such Constituent Corporation.
7
4.4 Registered Office. The registered office of the Surviving Corporation
-----------------
in the State of Delaware is located at The Corporation Trust Company, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of New Castle, 19805, and The
Corporation Trust Company is the registered agent of the Surviving Corporation
at such address.
4.5 Agreement. Executed copies of this Agreement will be on file at the
---------
principal place of business of the Surviving Corporation at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and copies thereof will be furnished to any
shareholder of either constituent Corporation, upon request and without cost.
4.6 Governing Law. This Agreement shall in all respects be construed,
-------------
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware.
4.7 Counterparts. In order to facilitate the filing and recording of this
------------
Agreement, the same may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
an the same instrument.
* * *
8
IN WITNESS WHEREOF, this Agreement and Plan of Merger, having first been
approved by resolutions of the Boards of Directors of ChipPAC Delaware and
ChipPAC California, is hereby executed on behalf of each of such two
corporations and attested by their respective officers thereunto duly
authorized.
CHIPPAC, INC.
a California corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Its: President and Chief
Executive Officer
ATTEST:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Secretary
CHIPPAC, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Its: President and Chief
Executive Officer
ATTEST:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Secretary
S-1