EXHIBIT 10.1
EXECUTION COPY
AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
JULY 14, 2000
among
CHASE ASIA INVESTMENT PARTNERS II (Y), LLC
ASIA OPPORTUNITY FUND, L.P.,
CO-INVESTORS LISTED HEREIN,
QPL INTERNATIONAL HOLDINGS LIMITED,
THE INDUSTRIAL INVESTMENT COMPANY LIMITED,
QPL (US) INC.
and
ASAT HOLDINGS LIMITED
TABLE OF CONTENTS
Page
ARTICLE 1................................................................. 1
DEFINITIONS............................................................... 1
1.1 Definitions......................................................... 1
1.2 Construction........................................................ 4
ARTICLE 2................................................................. 4
CORPORATE GOVERNANCE...................................................... 4
2.1 Composition of the Board............................................ 4
2.2 Removal............................................................. 6
2.3 Vacancies........................................................... 6
2.4 Meetings............................................................ 7
2.5 Action by the Board................................................. 7
2.6 Appointment of Auditors............................................. 8
2.7 Necessary Actions; Avoidance of Conflict............................ 8
2.8 Subsidiary Directors................................................ 8
2.9 Remuneration........................................................ 9
ARTICLE 3................................................................. 9
RESTRICTIONS ON TRANSFER.................................................. 9
3.1 General............................................................. 9
3.2 Legend on Share Certificates........................................ 9
3.3 Permitted Transferees............................................... 9
ARTICLE 4................................................................. 10
RIGHT OF FIRST OFFER; TAG ALONG RIGHTS; DRAG ALONG RIGHTS................. 10
4.1 Right of First Offer................................................ 10
4.2 Tag Along Rights.................................................... 12
4.3 Drag Along Rights; Mandatory Right of First Refusal................. 14
4.4 UK Creditor Option Agreement........................................ 17
4.5 UK Creditor Charge Agreement........................................ 17
4.6 Investors Charge.................................................... 18
4.7 Improper Transfer................................................... 18
4.8 Cooperation upon Transfer........................................... 18
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ARTICLE 5................................................................ 18
CONFIDENTIALITY; NON-COMPETITION......................................... 18
5.1 Confidentiality................................................... 18
5.2 Non-Competition by QPL............................................ 19
5.3 Non-Competition by Investors...................................... 20
5.4 Definitions....................................................... 20
ARTICLE 6................................................................ 21
QPL BANKRUPTCY; INDEMNIFICATION.......................................... 21
6.1 QPL Bankruptcy Event.............................................. 21
6.2 Indemnification................................................... 21
ARTICLE 7................................................................ 21
MISCELLANEOUS............................................................ 21
7.1 Ong Lawsuit....................................................... 21
7.2 Entire Agreement.................................................. 22
7.3 Binding Effect; Benefit........................................... 22
7.4 Assignment........................................................ 22
7.5 Amendment; Waiver; Termination.................................... 22
7.6 Notices........................................................... 23
7.7 Section Headings.................................................. 23
7.8 Counterparts...................................................... 23
7.9 Severability...................................................... 23
7.10 Applicable Law.................................................... 24
7.11 Specific Enforcement.............................................. 24
7.12 Submission to Jurisdiction........................................ 24
7.13 Agent for Service................................................. 24
7.14 UK Creditor Arrangements.......................................... 25
7.15 QPL Obligations................................................... 25
ANNEX A - List of Co-Investors
ANNEX B - Form of Deed of Adherence
ANNEX C - Addresses for Notice Under the Shareholders Agreement
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AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
AGREEMENT (the "Agreement") dated July 14, 2000 among CHASE ASIA INVESTMENT
PARTNERS II (Y), LLC, a limited liability company formed under the laws of
Delaware ("CAIP"), ASIA OPPORTUNITY FUND, L.P., an exempted limited partnership
formed under the laws of the Cayman Islands ("AOF"), the CO-INVESTORS listed in
Annex A (the "Co-Investors" and together with CAIP and AOF, the "Investors"),
THE INDUSTRIAL INVESTMENT COMPANY LIMITED, a company formed under the laws of
the Cayman Islands ("TIIC"), QPL INTERNATIONAL HOLDINGS LIMITED, a corporation
formed under the laws of Bermuda, QPL (US) INC. (formerly Worltek International,
Ltd.), a California corporation ("QPL US") and ASAT HOLDINGS LIMITED, a company
formed under the laws of the Cayman Islands ("ASAT").
In consideration of the covenants and agreements herein contained, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. Terms defined in the Subscription Agreement are
incorporated herein unless otherwise defined herein. The following terms, as
used herein, have the following meanings:
"Acceptance and Payment Agreement" means the Acceptance and Payment
Agreement dated and as in effect on October 29, 1999 between QPL, and the
companies listed in Schedule 1 thereto, the UK Creditors named in Schedule 2
thereto and Standard Chartered Bank, as security trustee.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person (and including a Subsidiary). No Shareholder shall be deemed an
Affiliate of any other Shareholder solely by reason of any investment in ASAT.
For the purpose of this definition, the term "control" (including with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
"ASAT HK" means ASAT Limited, a corporation incorporated under the
laws of Hong Kong which is a Subsidiary of ASAT.
"Board" means the board of directors of ASAT.
"Business Day" means a day other than Saturday, Sunday or any day on
which banks located in Hong Kong are authorized or obligated to close.
"EBITDA" means, for a specified period, the consolidated earnings
before interest, income taxes, depreciation and amortization, excluding non-
recurring or exceptional items and extraordinary gains and losses, of ASAT and
its consolidated Subsidiaries, as derived from the audited financial statements
of ASAT prepared in accordance with US GAAP as provided in Section 2.5(b).
"Financial Debt" means indebtedness for borrowed money, deferred
purchase price obligations, conditional sales obligations, capital lease
obligations, purchase money obligations and finance and capital leases,
guarantees thereof and other direct or contingent monetary obligations. For the
avoidance of doubt, "Financial Debt" does not include trade payables or
operating leases incurred in the ordinary course by business.
"Fund Affiliates" means, as to any Investor, (i) any of its general
partners, limited partners, fund managers and funds managed by its fund
managers, officers (including vice presidents), general partners and Affiliates
thereof, and, after the Initial Public Offering, any employee thereof, and (ii)
the spouses, lineal descendants and heirs of individuals referred to in clause
(i) and trusts controlled by or for the benefit of such individuals.
"Initial Public Offering" means the first Public Offering of equity
securities of ASAT, ASAT HK or other Subsidiary of ASAT (unless otherwise
specified) upon the consummation of which such securities are listed on Nasdaq
or a internationally recognized securities exchange, including without
limitation The Stock Exchange of Hong Kong Limited.
"Nasdaq" means the National Association of Securities Dealers, Inc.
Automated Quotation System's National Market.
"Net Debt" means all consolidated Financial Debt of the ASAT Companies
outstanding at the time of determination, net of cash held by the ASAT
Companies at such time.
"Percentage Ownership" means, with respect to any Shareholder, an
amount equal to the aggregate number of Shares registered in the name of such
Shareholder divided by the total number of Shares owned by the Shareholders.
"Permitted Transferee" means (a) with respect to each Investor: (i)
AOF, CAIP and any of their respective Fund Affiliates, (ii) any of its Fund
Affiliates, and (iii) any Permitted Transferee of its Permitted Transferees; and
(b) with respect to QPL: (i) any wholly owned Subsidiary of QPL and (ii) the
Investors and any of their respective Fund Affiliates with respect to Shares
Transferred (directly or through another Permitted Transferee) pursuant to the
UK Creditor Option Agreement.
"Person" means an individual, corporation, partnership, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
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"Public Offering" means, in the case of an offering in the United
States, an underwritten public offering of equity securities of ASAT or ASAT HK
pursuant to an effective registration statement under the U.S. Securities Act of
1933, as amended, and, in the case of an offering in any other jurisdiction, a
widely distributed underwritten offering of equity securities of ASAT or ASAT HK
in which both retail and institutional investors are eligible to buy in
accordance with the securities laws of such jurisdiction.
"Public Sale" means any Sale by a Shareholder of Shares (i) in a
Public Offering or (ii) on Nasdaq or on any other internationally recognized
securities exchange on which the Shares are listed following the Initial Public
Offering, provided that in either case such Sale is not directed to a particular
purchaser or group of purchasers with whom the Shareholder has an understanding,
agreement or arrangement (written or otherwise) regarding such Sale.
"QPL" means QPL International Holdings Limited, a corporation formed
under the laws of Bermuda and unless otherwise specified shall include, jointly
and severally with QPL International Holdings Limited, The Industrial Investment
Company Limited, QPL (US) Inc. and any direct or indirect wholly owned
Subsidiary of QPL that has a direct or indirect interest in the Shares.
"Required Drag Along Sale Price" means, for purposes of Section 4.3, a
per Share price of at least six times EBITDA for the period of the last four
full fiscal quarters less Net Debt at the end of such period (as calculated by
ASAT's auditors based on ASAT's latest available management accounts) divided by
the total number of issued and outstanding Shares on a fully diluted basis
(taking into account the Shares to be issued upon exercise of the Warrants and
the Shares to be issued to employees of any ASAT Company pursuant to an exercise
of stock options granted to such employee) at the time of such determination.
"Sell" means to Transfer, except by way of pledge, charge,
hypothecation or other grant of a security interest or making of any other
encumbrance, and "Sale" and "Sales" shall have correlative meanings.
"Shareholder" means each registered shareholder of ASAT that is a
party to this Agreement, whether in connection with the execution and delivery
hereof as of the date hereof, pursuant to Section 7.4 or otherwise.
"Shares" means ordinary shares in ASAT with voting rights, par value
US$0.01 per share, including any subdivisions, combinations, splits or
reclassifications thereof.
"Subscription Agreement" means the amended and restated subscription
agreement dated as of October 29, 1999 entered into among the Investors, QPL,
Bring Luck, TIIC, QPL US (formerly Worltek International, Ltd.), ASAT HK and
ASAT, pursuant to which the Investors, TIIC and QPL US and agreed severally and
not jointly and severally to subscribe for, inter alia, Shares.
"Subsidiary" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of
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directors or other such persons performing similar functions are at the time
directly or indirectly owned by such Person.
"Third Party" means a prospective purchaser of Shares in an arm's-
length transaction from a Shareholder where such purchaser is not a Permitted
Transferee of such Shareholder.
"Transfer" means to sell, exchange, assign, pledge, charge, grant a
security interest, make a hypothecation, gift or other encumbrance, or entering
into any contract therefor, any voting trust or other agreement or arrangement
with respect to the transfer of voting rights or any other legal or beneficial
interest in any of the Shares, creating any other claim thereto or to make any
other transfer or disposition whatsoever, whether voluntary or involuntary,
affecting the right, title, interest or possession in, to or of such Shares, and
"Transfer", "Transfers" and "Transferred" shall have correlative meanings.
"UK Creditor Charge" means the Second Share Charge as defined in the
UK Creditor/Investor Intercreditor Agreement and as in effect on October 29,
1999.
"UK Creditor/Investor Intercreditor Agreement" means the Investor
Inter-Creditor Agreement dated and as in effect on October 29, 1999 between the
UK Creditors named in Schedule 1 thereto, the Investors named in Schedule 2
thereto and Standard Chartered Bank, as security trustee.
"UK Creditor Option Agreement" means the Option Agreement dated and as
in effect on October 29, 1999 among TIIC, CAIP, AOF and QPL.
"UK Creditors" means the UK Creditors listed in Schedule 2 to the
Acceptance and Payment Agreement.
1.2 Construction. Unless the context of this Agreement otherwise
requires, (i) words of any gender include each other gender; (ii) words using
the singular or plural number also include the plural or singular number,
respectively; (iii) the terms "hereof," "herein," "hereby" and derivative or
similar words refer to this entire Agreement; (iv) the terms "Article" or
"Section" refer to the specified Article or Section of this Agreement; and (v)
the phrase "ordinary course of business" refers to the business of the ASAT
Companies taken as a whole or each ASAT Company, as the context requires.
Whenever this Agreement refers to a number of days, such number shall refer to
calendar days unless Business Days are specified.
ARTICLE 2
CORPORATE GOVERNANCE
2.1 Composition of the Board. (a) The Board shall consist of nine
directors. Subject to Section 2.1(b), AOF shall have the right to appoint three
directors and QPL shall have the right to appoint three directors, one of whom
initially shall be Xx. X.X. Xx. The remaining three directors shall be
Independent Directors and initially shall be Xxxxxx Xxxxx, Xxxxx Xxxxx and
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Xxxxxx Xxxxxxxx. Subject to Section 2.1(b), AOF shall select up to three
Independent Directors, and QPL shall nominate such persons, for recommendation
to the Board for approval and appointment by the Board in accordance with the
Articles of Association of ASAT and this Agreement, unless QPL reasonably
concludes that such person is not professionally qualified to serve as an
Independent Director, in which case, AOF shall select and QPL shall nominate
another person as the Independent Director on the same basis.
(b) Save as otherwise provided in this Section 2.1(b), if at any time
QPL or the Investors decrease their respective direct or indirect ownership of
Shares, Section 2.1(a) shall be deemed permanently amended so that the number of
directors that QPL or the Investors (as the case may be) may appoint, select or
nominate shall be reduced as set forth in the following table:
Percentage of Number of
Outstanding Shares Number of Independent
Owned by QPL or the Investors Directors Directors
----------------------------- --------- ---------
more than 20% 3 3
more than 10% but equal to or less than 20% 2 2
more than 5% but equal to or less than 10% 1 1
equal to or less than 5% 0 0
For the avoidance of doubt, it is understood that AOF may retain its right of
selection of an Independent Director under Section 2.1(a) even if QPL loses a
right of a nomination of such Independent Director as a result of this Section
2.1(b).
(c) Following issue of Shares upon exercise of the Warrants or issue
of Shares to employees of any ASAT Company pursuant to an exercise of stock
options granted to such employee, the percentage thresholds referred to in
Section 2.1(b) above shall be reduced to reflect the dilutive effect or
reduction of the numbers of Shares held by QPL or the Investors as a result of
such event.
(d) Upon losing the right to appoint a director pursuant to Section
2.1(b), AOF or QPL (as the case may be) shall cause the relevant number of
directors which it appointed under Section 2.1(a) to resign from the Board
unless a majority of the Board (excluding the resigning director) and a majority
of the Independent Directors determine otherwise.
(e) Each of QPL and AOF may designate one alternate director (other
than the Independent Directors) who shall receive all materials supplied to
directors and shall be entitled to attend all meetings of the Board and
committees thereof. The Shareholders shall procure that the Directors appointed
by any Shareholder shall not be required to hold any qualification share nor
shall they be subject to retirement by rotation.
(f) As used herein, "Independent Director" shall mean a person who
(i) at the time of election is not (A) a direct or indirect legal or beneficial
owner of equity securities in any ASAT Company in an amount greater than 5% of
the total outstanding equity securities of such ASAT company or (B) employee,
officer or director of any ASAT Company or of any
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Affiliate of any ASAT Company (other than as an Independent Director) and (ii)
is nominated as an Independent Director by the Board, provided that for so long
as equity securities of ASAT are quoted on Nasdaq at least three Independent
Directors shall meet the then current requirements for independent directors as
set forth in the rules of the National Association of Securities Dealers, Inc.
Each Shareholder entitled to vote for the election of directors to the Board
agrees that it will vote its Shares and take all other necessary action
(including in order to satisfy any quorum requirement) in order to ensure that
the composition of the Board is as set forth in this Section 2.1.
2.2 Removal. Each Shareholder agrees that if, at any time, it is
then entitled to vote for the removal of directors of ASAT, it will not vote any
of its Shares in favor of the removal of any director who shall have been
selected or appointed pursuant to Section 2.1 unless (a) such removal shall be
for Cause, (b) the director chosen by QPL or AOF (as the case many be) to resign
in accordance with Section 2.1(b) refuses to resign, (c) the Persons entitled to
select or appoint such director shall have consented to such removal in writing
or (d) such director fails to take any action necessary or appropriate to
implement the purpose of this Agreement or takes any action that is contrary to
or frustrates the purpose of this Agreement and all Shareholders (other than the
Shareholder entitled to select or appoint such director) shall have consented to
such removal in writing, provided that with respect to the removal of an
Independent Director, such written consent must be obtained from both AOF and
QPL, such consent not to be unreasonably withheld or delayed. Removal for
"Cause" shall mean removal of a director because of (a) such director's willful
and continued failure to substantially perform his duties as a director of ASAT,
(b) such director's willful conduct which is significantly injurious to ASAT or
any Shareholder's investment in Shares, monetarily or otherwise, (c) such
director's being convicted or investigated in a criminal proceeding (other than
traffic violations and other minor offenses), (d) such director's being censured
or subject to equivalent action by any internationally recognized securities
exchange (including a pending proceeding), or (e) a petition under the
bankruptcy of insolvency laws of any jurisdiction is filed by or against, or a
receiver, or similar officer is appointed by a court for the business or
property of, such director, or any partnership in which he is or was a general
partner at or within two years before such date or any corporation or business
association of which he was an executive officer at or within two years before
such date. Upon appointment to the Board or any board of directors of a
Subsidiary of an ASAT Company, each director appointee (for avoidance of doubt,
this does not include the Independent Directors) shall agree to abide by the
terms of this Article 2 and shall deliver to ASAT a signed notice of resignation
with a blank date, which AOF or QPL (as the case may be) may cause to be
completed and become effective in each case in accordance with the terms of this
Agreement and the Articles of Association of ASAT.
2.3 Vacancies. (a) If a director appointed by a person entitled
under Section 2.1(a) to appoint such director shall cease to be a director as a
result of death, disability, retirement, resignation, removal (with or without
Cause) or otherwise, such person may appoint on the basis provided in Section
2.1 another individual to fill such vacancy, provided such vacancy shall be
filled pursuant to Section 2.3(b) if such appointment would result in such
person having a number of appointees on the Board in excess of the maximum
number allotted to such person under Section 2.1(b).
(b) Notwithstanding anything to the contrary in the Articles of
Association of
6
ASAT except as provided in Section 2.3(a), any vacancy arising from the death,
disability, retirement, resignation, removal (with or without Cause) or
otherwise of a director shall be filled by (i) a majority of the directors
present at a meeting of the Board and (ii) a majority of the Independent
Directors. Each Shareholder who has appointed a director pursuant to Section 2.1
agrees to procure that its appointed directors will not vote in favor of a
nominee to fill such a vacancy unless a majority of the Independent Directors
have first voted in favor of such nominee. The Shareholders shall cooperate in
good faith with the Independent Directors to fill any vacancy of an Independent
Director seat so that there are at least three Independent Directors on the
Board.
(c) Notwithstanding anything to the contrary in the Articles of
Association of ASAT, with respect to any vacancy on the Board resulting from a
removal (with or without Cause) or from a resignation required under Section
2.1(d) or Section 6.1, the removed or resigning director shall not be entitled
to vote in the election of such director's successor and shall be not be counted
as attending the Board meeting at the time the Board elects such successor.
2.4 Meetings. The Board shall hold a regularly scheduled meeting at
least once every three calendar months, unless otherwise determined by the Board
but in no event less often than once every fiscal year. The Shareholders
entitled to vote Shares shall procure that notice in writing of not less than 10
Business Days shall be given in respect of a meeting of directors of ASAT or its
Subsidiaries, unless all directors of ASAT consent to shorter notice. Any
director may convene a board meeting by prior notice in accordance with Section
7.5. Board meetings shall be held in Hong Kong or at such other location agreed
by a majority of the Board, including, for so long as each is entitled to
appoint a director pursuant to Section 2.1, at least one director appointed by
QPL and one director appointed by AOF. Any director can participate in a meeting
of the directors of ASAT or its Subsidiaries by means of telephone conference or
similar communication equipment whereby all persons participating in such
meeting can hear each other. Participation in a meeting in such manner shall be
deemed to constitute presence in person at such meeting and shall be taken into
account for the purpose of a quorum and voting.
2.5 Action by the Board. (a) A quorum of the Board shall consist of
a majority of the total directors. If a quorum is not present within 60 minutes
of the appointed time for a meeting, the meeting will automatically be adjourned
to the same place and at the same time the following week (or if such day is not
a Business Day, at the same time on the next following Business Day), and any
four directors then present will constitute a quorum. For so long as the
Investors or QPL (as the case may be) own at least 10% of Shares outstanding,
the Shareholders agree not to take any action (and will procure that all
directors appointed by such Shareholder pursuant to Section 2.1 will not take
any action) at a meeting of the Board unless at least one director appointed by
AOF or QPL (as the case may be) is present at the meeting.
(b) All actions of the Board shall require the affirmative vote of at
least a majority of the directors present at a duly convened meeting of the
Board at which a quorum is present, provided that, in the event there is a
vacancy on the Board and an individual has been nominated to fill such vacancy,
the first order of business shall be to fill such vacancy.
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(c) The executive officers of ASAT shall submit to the Board, and
obtain their approval of, prior to the start of each fiscal year of ASAT, a
business plan (the "Business Plan") setting forth the annual budget and
operating plan of ASAT for such fiscal year. The Board shall receive quarterly
(no later than 45 days after the relevant fiscal quarter ends) and annual (no
later than 90 days after the relevant fiscal year ends) financial statements and
other appropriate reports concerning operations of ASAT and other matters
submitted to it. For the financial year ended April 30, 2000 and thereafter,
such quarterly and annual financial statements shall be prepared in accordance
with US GAAP and the annual financial statements shall be reported on by the
auditors selected pursuant to Section 2.6. ASAT shall also maintain a set of
statutory financial accounts prepared in accordance with HK GAAP, to the extent
required by any applicable law of Hong Kong. The first fiscal year after the
Closing Date shall end on April 30, 2000 unless all Shareholders otherwise
agree.
(d) The Board shall create an audit committee and may create
executive, compensation and other committees with such powers and duties as the
Board shall determine.
(e) The Shareholders entitled to vote Shares agree that the
provisions in ASAT's articles of association and in this Agreement regarding
voting by directors and shareholders shall apply equally to each ASAT Company as
if its name was substituted for ASAT throughout, and the Shareholders shall
procure that the Board shall not permit any Subsidiary or any ASAT Company to
engage in any transaction or matter unless in accordance with the relevant
provisions in ASAT's articles of association and this Agreement (other than a
transaction or matter involving exclusively other ASAT Companies or wholly owned
Subsidiaries thereof).
2.6 Appointment of Auditors. Each Shareholder entitled to vote
Shares agrees to vote its Shares, and each Shareholder who has appointed a
director pursuant to Section 2.1 agrees to procure that its appointed directors
will vote, to cause the Board to appoint as ASAT's auditors an internationally
recognized accounting firm selected by AOF and approved by QPL (such approval
not to be unreasonably withheld or delayed).
2.7 Necessary Actions; Avoidance of Conflict. Each Shareholder
shall, subject to applicable law, vote its Shares and take all actions
necessary, and each Shareholder who has appointed a director pursuant to Section
2.1 agrees to procure that its appointed directors will vote and take all action
necessary, to (a) implement the provisions of this Agreement and each of the
other Transaction Agreements, (b) ensure compliance by such Shareholder with its
obligations under this Agreement and under each of the other Transaction
Agreements and (c) ensure that the Memorandum and Articles of Association of
ASAT (and the memorandum and articles of association, certificate of
incorporation, bylaws or other basic organizational documents of any of ASAT's
Subsidiaries) facilitate and do not at any time conflict with any provision of
this Agreement.
2.8 Subsidiary Directors. Subject to Sections 2.1 and 6.1, the board
of directors of each Subsidiary of ASAT or Subsidiary thereof shall consist of
an equal number of directors appointed by QPL and AOF, with no more than three
directors being appointed by QPL and AOF each, except that the board of
directors of ASAT HK shall be identical in size and members to the Board. QPL
and AOF shall cause their respective appointees to take all actions in
8
accordance with the directions of the Board. Such appointees may be removed and
vacancies on such boards shall be filled on the same basis as provided in
Sections 2.2 and 2.3.
2.9 Remuneration. No director on the Board (other than the
Independent Director) shall be entitled to any remuneration for serving in such
capacity except for reimbursement of out-of-pocket expenses in connection with
the performance of his duties as director and, if such director is otherwise an
employee or consultant of ASAT, remuneration received in such capacity.
ARTICLE 3
RESTRICTIONS ON TRANSFER
3.1 General. No Shareholder will, directly or indirectly, Transfer
any Shares or any interest therein (or solicit any offers for the Transfer
thereof) unless such Transfer is in accordance with and permitted by Articles 3
and 4. Without limitation of the foregoing, QPL shall not directly or indirectly
Transfer any equity or other ownership interests in or voting control of any
Affiliate of QPL that has any direct or indirect legal or beneficial ownership
of any Shares, other than to a wholly owned subsidiary of QPL. Notwithstanding
anything to the contrary in Section 3.1, QPL may pledge Shares to the Investors
pursuant to the charge agreement described in Section 4.6 and as provided in
Section 4.5.
3.2 Legend on Share Certificates. (a) In addition to any other
legend that may be required, each certificate for Shares owned by a Shareholder
shall bear a legend in substantially the following form:
"THIS SECURITY IS SUBJECT TO RESTRICTIONS ON TRANSFER AS SET
FORTH IN A SHAREHOLDERS AGREEMENT DATED AS OF JULY 14, 2000, A
COPY OF WHICH MAY BE OBTAINED UPON REQUEST FROM ASAT HOLDINGS
LIMITED. NO SUCH TRANSFER SHALL BE EFFECTIVE UNLESS AND UNTIL THE
TERMS AND CONDITIONS OF THE AFORESAID SHAREHOLDERS AGREEMENT HAVE
BEEN COMPLIED WITH IN FULL."
(b) If any Shares cease to be subject to any restrictions on Transfer
set forth in this Agreement (including by way of Public Sale), ASAT shall, upon
the written request of the holder thereof, issue to such holder a new
certificate evidencing such shares without the legend required by Section 3.2(a)
endorsed thereon.
3.3 Permitted Transferees. Notwithstanding anything in this
Agreement to the contrary, a Shareholder may Transfer any or all of its Shares
to one or more of its Permitted Transferees without the consent of the Board or
any other Shareholder (it being understood that such consent shall have deemed
to have been given) and without compliance with Sections 4.1, 4.2 and 4.3 if (a)
such Permitted Transferee shall have entered into a deed of adherence
substantially in the form attached as Annex B and (b) the Transfer to such
Permitted Transferee is not in violation of applicable securities laws.
Notwithstanding any such Transfer, the transferring Shareholder and its
Permitted Transferees shall be deemed to be a single
9
Shareholder under this Agreement. Following any Transfer of its Shares to a
Permitted Transferee (other than a Permitted Transferee referred to in clause
(b)(ii) of the definition of "Permitted Transferee"), QPL shall remain jointly
and severally liable with such Permitted Transferee. If any Permitted Transferee
holding Shares Transferred to it by a Shareholder pursuant to Section 3.3 shall
no longer qualify as a Permitted Transferee of such Shareholder, the Permitted
Transferee shall return the Shares to such Shareholder or to another Permitted
Transferee of such Shareholder in accordance with the Shareholder's instruction.
ARTICLE 4
RIGHT OF FIRST OFFER;
TAG ALONG RIGHTS;
DRAG ALONG RIGHTS
4.1 Right of First Offer. (a) Any Shareholder (the "Section 4.1
Seller") that desires to sell any of its Shares (other than a Sale (x) to a
Permitted Transferee as permitted by Section 3.3, (x) in a Public Sale, (y)
pursuant to the UK Creditor Option Agreement or (z) in connection with a
Transfer by QPL pursuant to Transfer of Shares referred to in Section 4.6) shall
provide each non-selling Shareholder written notice of its desire to so Sell
Shares (a "Right of First Offer Notice"). The Right of First Offer Notice shall
set forth the number of Shares which the Section 4.1 Seller desires to Sell, the
per share consideration to be received for the Shares and any other proposed
material terms and conditions relating to such Sale. Notwithstanding the
foregoing, a Chargee or UK Creditor holding an interest in Shares pursuant to or
as a result of a charge or Charge Transfer contemplated by Section 4.5 shall not
have any rights under this Section 4.1.
(b) (i) The delivery of a Right of First Offer Notice shall
constitute an offer, which, subject to Section 4.5(b) below, shall be
irrevocable for 21 days (the "Right of First Offer Notice Period"), by the
Section 4.1 Seller to Sell to each non-selling Shareholder (each an "Offeree"
and collectively the "Offerees") the Shares subject to the Right of First Offer
Notice, for the per share price set forth in the Right of First Offer Notice and
on the terms and conditions set forth therein. Each Offeree shall have the
right, but not the obligation, to accept the offer set forth in the Right of
First Offer Notice to purchase all but not less than all of the Shares subject
thereto by giving a written notice of purchase (a "Section 4.1 Purchase Notice")
to the Section 4.1 Seller prior to the expiration of the Right of First Offer
Notice Period. Subject to Section 4.1(b)(ii), delivery of a Section 4.1 Purchase
Notice by an Offeree to the Section 4.1 Seller shall constitute a contract
between such Offeree and the Section 4.1 Seller for the purchase and Sale of the
Shares subject to the Right of First Offer Notice for the per share price set
forth in the Right of First Offer Notice and on the terms and conditions set
forth therein.
(ii) In the event more than one Offeree shall deliver a Section
4.1 Purchase Notice to the Section 4.1 Seller prior to the expiration of the
Right of First Offer Notice Period, each such Section 4.1 Purchase Notice shall
constitute a separate contract between the Section 4.1 Seller and such Offeree
delivering a Section 4.1 Purchase Notice for the purchase and Sale of Shares
subject to the Right of First Offer Notice, at the per share price set forth
therein. The number of Shares subject to each such separate contract shall be
determined on a
10
pro rata basis based upon the number of Shares owned by each Offeree delivering
--- ----
a Section 4.1 Purchase Notice, or on such other basis as such Offerees may
agree. The aggregate number of Shares, and the aggregate purchase price thereof,
subject to all such contracts shall at all times equal the number of Shares set
forth in the Right of First Offer Notice and the purchase price per share set
forth therein multiplied by the number of Shares set forth therein,
respectively.
(c) The closing of any purchase and Sale of Shares between the
Section 4.1 Seller and any Offeree pursuant to this Section 4.1 shall take place
on the date designated by such Offeree within 30 days from the termination of
the Right of First Offer Notice Period; provided that if such purchase and Sale
of such Shares is subject to any prior approval or other consent required by
applicable law, regulation or stock exchange rule, the time period during which
the closing of such purchase and Sale may occur shall be extended (but not to
exceed 120 days in the aggregate) until the expiration of ten Business Days
after all such approvals and consents shall have been received. The parties
shall use reasonable efforts to obtain all such approvals and consents.
(d) If no Offerees deliver a Section 4.1 Purchase Notice in
accordance with Section 4.1(b) prior to the termination of the Right of First
Offer Notice Period, there shall commence a 90 day period during which the
Section 4.1 Seller shall have the right, subject to Section 4.2 (Tag Along
Rights) and Section 4.3 (Drag Along Rights), to enter into an agreement to Sell
all the Shares subject to the Right of First Offer Notice to a Third Party for a
per share price equal to at least the per share price set forth in the Right of
First Offer Notice and otherwise on terms and conditions not more favorable in
the aggregate to the purchaser than those set forth in the Right of First Offer
Notice.
(e) Any proposed Sale to a Third Party pursuant to this Section 4.1:
(i) shall be in compliance with all applicable laws, regulations and stock
exchange rules, including, without limitation, all securities laws, and (ii)
shall be consummated within 30 days from the termination of the Tag Along Notice
Period as defined in Section 4.2(b); provided that if the Sale of such Shares is
subject to any prior regulatory approval or consent, the time period during
which such Sale may be consummated may be extended (but not to exceed 120 days
in the aggregate from the date of execution of such agreement) until the
expiration of ten Business Days after all such approvals and consents shall have
been received. If the Section 4.1 Seller does not consummate the Sale of the
Shares subject to the Right of First Offer Notice in accordance with the above
time limitations, it may not thereafter Sell such Shares except in compliance in
full with all the provisions of this Section 4.1.
(f) Promptly after consummation of any Sale to a Third Party pursuant
to Section 4.1(e), the Section 4.1 Seller shall notify each non-selling
Shareholder of the consummation thereof and shall furnish such evidence of the
completion of such Sale and of the terms thereof as such Shareholder may
reasonably request, including, without limitation, evidence that the per share
price paid by such Third Party was equal to at least the per share price set
forth in the Right of First Offer Notice and otherwise on terms and conditions
not more favorable in the aggregate to such Third Party than those set forth in
the Right of First Offer Notice.
11
(g) All proposed Sales of Shares to a Third Party under Section
4.1(d) shall also be subject to Sections 4.2 and 4.3. For avoidance of doubt,
the operation of Sections 4.2 and 4.3 do not require the selling Shareholder to
deliver a second Right of First Offer Notice under Section 4.1.
(h) Notwithstanding anything contained in this Section 4.1, there
shall be no liability on the part of the Section 4.1 Seller to any non-Selling
Shareholder if the Sale of Shares to a Third Party pursuant to this Section 4.1
is not consummated for whatever reason. Any decision as to whether to Sell
Shares shall be at the sole and absolute discretion of the Section 4.1 Seller.
(i) QPL acknowledges and agrees that (1) if a Right of First Offer
Notice states that Permitted Transferees of the Shareholder issuing such notice
have priority to purchase all (but not less than all) Shares included in such
offer, then such Permitted Transferees have the right to accept such offer to
the exclusion of QPL (due to their status as Permitted Transferees); and (2) if
CAIP or AOF gives a Right of First Offer Notice that states its intention to
cause a Sale of all their Shares and all the Shares then owned by Co-Investors
to a Third Party if other Shareholders (including QPL) fail to purchase CAIP's
and AOF's Shares specified in such Right of First Offer Notice, then CAIP and
AOF may cause the Sale of the Co-Investors' Shares during the 90 day period
referred to in Section 4.1(d) at the same price per Share and on the same terms
specified in such Right of First Offer Notice with respect to CAIP's and AOF's
Shares without the Co-Investors' Shares being reoffered to QPL under this
Section 4.1.
4.2 Tag Along Rights. (a) Any Shareholder (the "Section 4.2 Seller")
that proposes to Sell any of its Shares to a Third Party (other than a Sale (w)
to a Permitted Transferee as permitted by Section 3.3, (x) in a Public Sale, (y)
pursuant to the UK Creditor Option Agreement, or (z) in connection with a
Transfer by QPL pursuant to a Charge Transfer or a sale by a Chargee to the
extent provided in Section 4.5 or pursuant to a Transfer of Shares referred to
in Section 4.6) and that complied with Section 4.1 (a "Section 4.2 Sale") shall
provide written notice of such proposed Section 4.2 Sale to the non-selling
Shareholders ("Tag Along Notice") and a copy of the agreement pursuant to which
the Section 4.2 Seller proposes to Sell such Shares (the "Section 4.2
Agreement"). The Tag Along Notice shall identify the number of Shares subject to
the Section 4.2 Sale, the per share consideration for which the Section 4.2 Sale
is proposed to be made (the "Section 4.2 Sale Price") and all other material
terms and conditions of the proposed Section 4.2 Sale. Notwithstanding the
foregoing, a Chargee or UK Creditor holding an interest in Shares pursuant to or
as a result of a charge or Charge Transfer contemplated by Section 4.5 shall not
have any rights under this Section 4.2.
(b) Each non-selling Shareholder shall have the right and option,
exercisable as set forth below, to participate in the Section 4.2 Sale for up to
the number of Shares (the "Participating Shares") as constitute its Tag Along
Pro Rata Portion of the number of Shares subject to the Section 4.2 Sale, and
the number of Shares which the Section 4.2 Seller is entitled to Sell in the
Section 4.2 Sale shall be reduced to the extent of the participation of the non-
selling Shareholders pursuant to this Section 4.2. "Tag Along Pro Rata Portion"
means, with respect to each non-selling Shareholder, at the time of the Section
4.2 Sale, its Percentage Ownership. Each non-selling Shareholder that desires to
exercise such option shall provide the Section 4.2 Sellers with written
irrevocable notice within seven Business Days after the date the Tag Along
12
Notice is given (the "Tag Along Notice Period") and shall simultaneously provide
a copy of such notice to ASAT and the other non-selling Shareholders. Such
notice shall include the number of Participating Shares that such non-selling
Shareholder wishes to Sell in the Section 4.2 Sale. Until the termination of the
Tag Along Notice Period, the Section 4.2 Seller shall not Sell any of the Shares
subject to the Section 4.2 Sale.
(c) The per share consideration to be paid to the Section 4.2 Seller
and each non-selling Shareholder participating in the Section 4.2 Sale shall be
the Section 4.2 Sale Price. Each of the non-selling Shareholders electing to
participate in the Section 4.2 Sale (i) shall be responsible for delivering to
the Third Party the certificate or certificates representing all Shares that
such non-selling Shareholder is Selling and collecting directly from the Third
Party the consideration to be paid in connection with the Sale of such Shares
and (ii) shall cooperate in good faith to effect the Sale to such Third Party
hereunder.
(d) If at the termination of the Tag Along Notice Period any non-
selling Shareholder shall not have elected to participate in the Section 4.2
Sale, such non-selling Shareholder will be deemed to have waived any of and all
of its rights under this Section 4.2 with respect to the Sale of its Shares
pursuant to such Section 4.2 Sale. If any non-selling Shareholder (i) has not
elected to Sell any of the Participating Shares it is entitled to Sell in the
Section 4.2 Sale, (ii) has elected to Sell some but not all of the Participating
Shares it is entitled to Sell in the Section 4.2 Sale, or (iii) has elected Sell
any or all of the Participating Shares it is entitled to Sell in the Section 4.2
Sale but subsequently fails to deliver to the Third Party the certificate or
certificates representing any of the Participating Shares that it has elected to
Sell, then the Section 4.2 Seller and the non-selling Shareholders which have
elected to participate in the Section 4.2 Sale (excluding any non-selling
Shareholder referred to in clauses (ii) and (iii) above) shall be entitled to
Sell additional Shares in an amount not exceeding the sum of (x) the number of
Shares that the non-selling Shareholder referred to in clause (i) above was
entitled to Sell, plus (y) the number of Shares that the non-selling Shareholder
----
referred to in clause (ii) above has elected not to Sell, plus (z) the number of
----
Shares that the non-selling shareholder referred to in clause (iii) above
elected to Sell but as to which it subsequently failed to deliver certificates
("Additional Shares"). The number of Additional Shares that each of the Section
4.2 Seller and such non-selling Shareholders (excluding any non-selling
Shareholder referred to in clauses (ii) and (iii) above) is entitled to Sell in
the Section 4.2 Sale shall be determined on a pro rata basis, based upon (1) as
--- ----
to the Section 4.2 Seller, the number of Shares it would be entitled to Sell if
all non-Selling Shareholders elected to participate fully in the Section 4.2
Sale and (2) as to such non-Selling Shareholders, the number of Shares that each
has elected to Sell in the Section 4.2 Sale.
(e) The Section 4.2 Seller shall provide to each non-selling
Shareholder a copy of any amendment or modification of the Section 4.2 Agreement
in connection with the Section 4.2 Sale. Notwithstanding anything in this
Section 4.2 to the contrary, any material modification or amendment to the
Section 4.2 Agreement after execution thereof by an accepting non-selling
Shareholder including, without limitation, any decrease in the Section 4.2 Sale
Price, any change in the form of consideration or any amendment which could
increase the potential liability of the accepting non-selling Shareholder, shall
not be binding upon the non-selling Shareholder unless the accepting non-selling
Shareholder consents to such amendment or modification, or fails to
13
reject such modification or amendment within five Business Days after written
receipt of notice thereof (and any rejection shall be deemed to be a revocation
of such non-selling Shareholder's right to participate in such Section 4.2
Sale).
(f) Notwithstanding anything contained in this Section 4.2, there
shall be no liability on the part of the Section 4.2 Seller to any non-selling
Shareholder if the Sale of Shares pursuant to this Section 4.2 is not
consummated for whatever reason. Any decision as to whether to Sell Shares
shall be at the Section 4.2 Seller's sole and absolute discretion.
4.3 Drag Along Rights; Mandatory Right of First Refusal. (a) If any
of AOF, CAIP or QPL (the "Section 4.3 Seller") (i) proposes to Sell all but not
less than all its Shares to a Third Party (other than a Sale (w) to a Permitted
Transferee as permitted by Section 3.3, (x) in a Public Sale, (y) pursuant to
the UK Creditor Option Agreement or (z) in connection with a Transfer by QPL
pursuant to a Charge Transfer referred to in Section 4.5 or pursuant to a
Transfer of Shares referred to in Section 4.6) for a per share price of at least
the Required Drag Along Sale Price (a "Section 4.3 Sale"), (ii) has complied
with Section 4.1 (Right of First Offer), and (iii) desires to require the non-
selling Shareholders to participate in such Sale in respect of all of their
respective Shares, then the Section 4.3 Seller must first grant the non-selling
Shareholders a right of first refusal to purchase the Shares subject to the
Section 4.3 Sale, as described in Section 4.3(b), before it will be entitled to
proceed with the Section 4.3 Sale. For the avoidance of doubt, a Chargee or UK
Creditor holding an interest in Shares pursuant to or as a result of a charge or
Charge Transfer contemplated by Section 4.5 shall not have any rights under this
Section 4.3.
(b) The Section 4.3 Seller shall provide ASAT and the non-selling
Shareholders written notice of such Section 4.3 Sale (a "Right of First Refusal
Notice") and a copy of the agreement pursuant to which the Section 4.3 Seller
proposes to Sell such Shares (the "Section 4.3 Agreement"). The Right of First
Refusal Notice shall identify the purchaser, the number of Shares subject to the
Section 4.3 Sale, the per share price for Shares for which the Section 4.3 Sale
is proposed to be made (the "Section 4.3 Sale Price") and all other material
terms and conditions of the Section 4.3 Sale.
(c) The delivery of a Right of First Refusal Notice shall constitute
an offer, irrevocable for seven Business Days (the "Right of First Refusal
Notice Period"), by the Section 4.3 Seller to Sell to each non-selling
Shareholder (each an "Offeree" and collectively the "Offerees") the Shares
subject to the Section 4.3 Sale, for a per share price equal to the Section 4.3
Sale Price and on the terms and conditions as set forth in the Right of First
Refusal Notice. Each Offeree shall have the right, but not the obligation, to
accept the offer set forth in the Right of First Refusal Notice to purchase all
but not less than all of the Shares subject thereto by giving a written notice
of purchase (a "Section 4.3 Purchase Notice") to the Section 4.3 Seller prior to
the termination of the Right of First Refusal Period. Subject to Section
4.3(d), delivery of a Section 4.3 Purchase Notice by an Offeree to the Section
4.3 Seller shall constitute a contract between such Offeree and the Section 4.3
Seller for the purchase and Sale of the Shares subject to the Right of First
Refusal Notice for a per share price equal to the Section 4.3 Sale Price and on
the other terms and conditions set forth in the Right of First Refusal Notice.
(d) In the event more than one Offeree shall deliver a Section 4.3
Purchase
14
Notice to the Section 4.3 Seller prior to the termination of the Right of First
Refusal Notice Period, each such Section 4.3 Purchase Notice shall constitute a
separate contract between the Section 4.3 Seller and such Offeree delivering a
Section 4.3 Purchase Notice for the purchase and Sale of Shares subject to the
Right of First Refusal Notice, at the per share Section 4.3 Sale Price. The
number of Shares subject to each such separate contract shall be determined on a
pro rata basis, based upon the number of Shares owned by each Offeree delivering
--- ----
a Section 4.3 Purchase Notice, or on such other basis as such Offerees may
agree. The aggregate number of Shares, and the aggregate price thereof, subject
to all such contracts shall at all times equal, the number of Shares set forth
in the Right of First Refusal Notice and the per share Section 4.3 Sale Price
multiplied by the number of Shares set forth therein, respectively.
(e) The closing of any purchase and Sale of Shares between the
Section 4.3 Seller and any Offeree delivering a Section 4.3 Purchase Notice
pursuant to Section 4.3(c) shall take place on the date designated by such non-
selling Shareholder within 30 days from the termination of the Right of First
Refusal Notice Period; provided that if such purchase and Sale of such Shares is
subject to any prior approval or other consent required by applicable law,
regulation or stock exchange rule, the time period during which the closing of
such purchase and Sale may occur shall be extended (but not to exceed 120 days
in the aggregate) until the expiration of ten Business Days after all such
approvals and consents shall have been received. The parties shall use
reasonable efforts to obtain all such approvals and consents.
(f) If no Offerees deliver a Purchase Notice in accordance with
Section 4.3(c) prior to the termination of the Right of First Refusal Notice
Period, the Section 4.3 Seller may, at its option, require the non-selling
Shareholders to participate in the Section 4.3 Sale, subject to applicable law.
If the Section 4.3 Seller chooses to do so, then it shall deliver to ASAT and
the non-selling Shareholders written notice of its decision to compel the non-
selling Shareholders to Sell all their respective Shares in the Section 4.3 Sale
(a "Drag Along Notice") at the same price per share and on the same terms
specified in the Right of First Refusal Notice. Subject to Section 4.3(b), the
non-selling Shareholders shall be required to participate in the Section 4.3
Sale on the terms and conditions set forth in the Drag Along Notice and to
tender all but not less than all of their respective Shares, as set forth below.
Each of the non-selling Shareholders required to participate in the Section 4.3
Sale (i) shall deliver to the Third Party the certificate or certificates
representing all Shares that such non-selling Shareholder is Selling in the
Section 4.3 Sale on or before the closing of the Section 4.3 Sale pursuant to
Section 4.3(h); (ii) shall collect directly from the Third Party the
consideration to be paid for the Shares it is Selling in the Section 4.3 Sale;
and (iii) shall cooperate in good faith to effect the Sale to such Third Party
hereunder.
(g) Notwithstanding Section 4.3(f) to the contrary, if the Section
4.3 Agreement would impose potential liability on the non-selling Shareholders
in excess of the purchase price to be received by the non-selling Shareholders
for the Shares to be sold by them (excluding any stamp duty for the seller's
account), the non-selling Shareholders shall have the option, exercisable during
the Drag Along Notice Period, and in lieu of participating in the Section 4.3
Sale, to Sell their respective Shares (the "Put Shares") to the Section 4.3
Seller at a per share price equal to 95% of the Required Drag Along Sale Price.
If the non-selling Shareholders shall exercise such option, they each shall be
thereafter obligated to Sell, and the
15
Section 4.3 Seller shall be obligated to purchase, the Put Shares only upon and
simultaneously with the consummation of the Section 4.3 Sale. In any such Sale
to the Section 4.3 Seller, the non-selling Shareholders shall not be obligated
to make any representation or warranty to the Section 4.3 Seller other than a
warranty with respect to the title to the Put Shares and customary
representations and warranties regarding the valid and binding nature of the
agreements of the non-selling Shareholders in connection with such Sale, the
possession of full authority by the non-selling Shareholders to enter into such
agreements and the absence of any requirements for consents to or approvals by
other parties for such Sale.
(h) Any proposed Sale to a Third Party pursuant to this Section 4.3
shall be in compliance with all applicable laws, regulations and stock exchange
rules, including, without limitation, all securities laws and such proposed Sale
shall be consummated within 30 days from the delivery of the Drag Along Notice;
provided that if the Sale of such Shares is subject to any prior regulatory
approval or consent, the time period during which such Sale may be consummated
may be extended (but not to exceed 120 days in the aggregate from the date of
execution of such agreement) until the expiration of ten Business Days after all
such approvals and consents shall have been received. Shareholders shall use all
reasonable endeavours to obtain such consents and approvals as may be required
in order for them to comply with the provisions of this Section 4.3.
(i) Promptly after the consummation of the Sale of Shares of the
Section 4.3 Seller and the non-selling Shareholders pursuant to Section 4.3(f)
or (g), the Section 4.3 Seller shall (i) give notice thereof to ASAT and (ii)
furnish such other evidence of the completion and time of completion of such
Sale and the terms thereof as may be reasonably requested by ASAT.
(j) Notwithstanding anything contained in this Section 4.3, there
shall be no liability on the part of the Section 4.3 Seller to any of the non-
selling Shareholders if the Sale of Shares to a Third Party pursuant to this
Section 4.3 is not consummated for whatever reason. Any decision as to whether
to Sell Shares shall be at the sole and absolute discretion of the Section 4.3
Seller.
(k) Save as otherwise provided in this Section 4.3(k), if at any time
QPL owns less than 50% of the outstanding Shares (including as a result of a
Transfer pursuant to Section 4.5 or otherwise), this Section 4.3 shall be deemed
permanently amended to delete QPL from the definition of "Section 4.3 Seller"
and to eliminate any right of QPL to exercise any rights under Section 4.3. If
at any time the Investors collectively own less than 50% of the outstanding
Shares (including as a result of a Transfer pursuant to Section 4.5 or
otherwise), this Section 4.3 shall be deemed permanently amended to delete AOF
and CAIP from the definition of "Section 4.3 Seller" and to eliminate any right
of AOF and CAIP to exercise any rights under Section 4.3. Following an Initial
Public Offering by ASAT, Public Sale by QPL or the Investors (as applicable),
issue of Shares upon exercise of the Warrants or issue of Shares to employees of
any ASAT Company pursuant to an exercise of stock options granted to such
employee, this Section 4.3(b) shall remain in effect and the 50% threshold
referred to above shall be reduced to reflect the dilutive effect or reduction
of the numbers of Shares held by QPL or the Investors as a result of such event.
16
(l) Notwithstanding Section 4.3(a), if CAIP or AOF is the Section 4.3
Seller and a Charge Transfer or QPL Bankruptcy Event shall have occurred or is
in the process of occurring, CAIP and AOF may exercise their drag along rights
under this Section 4.3 whether or not the Required Drag Along Sale Price
condition of Section 4.3(a) is satisfied, provided that the requirements of
Clause 7.1 of the UK Creditor/Investor Intercreditor Agreement, if in effect,
shall have been satisfied upon completion of the Section 4.3 Sale.
4.4 UK Creditor Option Agreement. Nothing in this Article 4 shall
preclude a Transfer of Shares pursuant to the terms of the UK Creditor Option
Agreement and UK Credit/Investor Intercreditor Agreement as in effect on the
date hereof.
4.5 UK Creditor Charge Agreement. (a) QPL shall be entitled to
charge (but not by way of legal mortgage) its Shares held on the date hereof,
70% of which may be to secure indebtedness incurred by QPL Affiliates in respect
of the UK Creditors, such charge to be effected pursuant to the UK Creditor
Charge (which shall rank second in priority to the Investor Charge dated as of
October 29, 1999 among TIIC, QPL US (formerly Worltek International, Ltd.), AOF
(on behalf of the entities listed therein) and Standard Chartered Bank as
security trustee) and the UK Creditor/Investor Intercreditor Agreement, each as
in effect on October 29, 1999 and 30% of which may be to secure indebtedness
incurred by QPL Affiliates in respect of the UK Creditors, such charge to
effected pursuant to a charge dated as of October 29, 1999 (collectively, the
"UK Creditor Charge Agreements").
(b) Before any chargee under the UK Creditor Charge Agreements (a
"Chargee") may enforce its rights under the UK Creditor Charge Agreements to
cause a Transfer of Shares to it or any other person (a "Charge Transfer"), it
shall first comply with all the provisions for Transfers of Shares in Section
4.1 and give each Shareholder (other than QPL) a Right of First Offer Notice
offering to Sell the Shares subject to the Charge Transfer (the "Charge Transfer
Shares") to them at a price equal to the fair value per Share based upon an
arm's length transaction between a willing purchaser and a willing seller as
determined by an internationally recognized investment bank selected by a
majority of the Board; provided that the Right of First Offer Notice Period
shall be 90 days and shall be extended if and for so long as any action by a
court, liquidator, administrator, judicial manager or any equivalent in any
relevant jurisdiction prevents the Offerees from accepting the Right of First
Offer. If no such Shareholders deliver a Section 4.1 Purchase Notice in
accordance with Section 4.1(b) prior to the termination of the Right of First
Offer Notice Period, the Chargee may thereafter Sell the Charge Transfer Shares
to any other person for the period provided in Section 4.1(d) (subject to
extension as provided in the prior sentence) without being subject to Section
4.2. If such Sale is not completed within such period, any further Sale by the
Chargee or a UK Creditor shall be subject to Sections 4.1 and 4.2.
(c) Upon the occurrence of a Charge Transfer, none of QPL's rights
under Article 2 or Article 4 shall in any respect be Transferable or assignable
to the Chargee or any subsequent direct or indirect Transferee of such Shares.
The Chargee and any such Transferee, however, shall be subject to all
obligations of the Shareholders under Article 4.
(d) Notwithstanding anything in this Section 4.5 to the contrary, if
any
17
Chargee desires to effect a Charge Transfer upon or following a QPL Bankruptcy
Event, such Chargee shall not be required to comply with clauses (a) and (b) of
this Section 4.5.
4.6 Investors Charge. Nothing in this Article 4 shall preclude a
Transfer of Shares to the chargee or the Investors under the deed of first
charge dated October 29, 1999 over the Shares pledged by QPL to secure its
obligations to the Investors under the Subscription Agreement.
4.7 Improper Transfer. Any attempt to Transfer any Shares not in
compliance with this Agreement shall be null and void and neither ASAT nor any
transfer agent shall give any effect in ASAT's stock records to such attempted
Transfer.
4.8 Cooperation upon Transfer. The parties hereto agree to cooperate
in good faith in negotiating any adjustments to this Agreement that may be
necessary as a result of any Transfer of Shares by a Shareholder in accordance
with this Agreement.
ARTICLE 5
CONFIDENTIALITY;
NON-COMPETITION
5.1 Confidentiality. (a) Each Shareholder hereby agrees that
Confidential Information (as defined below) has been and will be made available
to it in connection with such Shareholder's investment in ASAT. Each Shareholder
agrees that it will not use the Confidential Information in any way to the
competitive disadvantage of any ASAT Company. Each Shareholder further
acknowledges and agrees that it will not disclose any Confidential Information
to any Person; provided that Confidential Information may be disclosed (i) to
such Shareholder's directors, officers, employees, agents, Affiliates, partners,
fund investors and co-investors, counsel, legal and financial advisers,
accountants, consultants and controlling persons (all such persons being
collectively referred to as "Representatives") in the normal course of the
performance of their duties provided that such Representatives agree to abide by
the terms of this Section 5.1, (ii) to the extent required by applicable law,
rule, regulation, legal process or regulatory authority (including complying
with any oral or written questions, interrogatories, requests for information or
documents, subpoenas, civil investigative demands or similar process to which
such Shareholder is subject) or the rules of any securities exchange on which
ASAT is listed, provided that such Shareholder has not taken action that caused
or could have reasonably been foreseen to cause such legal obligation for
disclosure and such action (other than entering into any Transaction Agreement)
could have reasonably been avoided, (iii) to any Person to whom such Shareholder
in good faith is contemplating a Transfer of its Shares, provided that such
Transfer would not be in violation of the provisions of this Agreement and as
long as such Person is advised of the confidential nature of such information
and agrees to be bound by a confidentiality agreement on substantially the same
basis as this Section 5.1, (iv) by the Investors or any of their Representatives
to Persons providing possible sources of financing for the transactions
contemplated by the Transaction Agreements, and (v) if the prior written consent
of the Board shall have been obtained. Nothing contained herein shall prevent
the use of
18
Confidential Information in connection with the assertion or defense of any
claim by or against the ASAT Companies or any Shareholder. The parties hereto
acknowledge that this Section 5.1 supersedes all prior agreements entered in
among any of the parties hereto with respect to the confidentiality of the
matters specified in this Section 5.1.
(b) "Confidential Information" means any information concerning (i)
any ASAT Company, its financial condition, business, operations or prospects in
the possession of or to be furnished to any Shareholder in its capacity as a
shareholder of ASAT or by virtue of its present or former position as, or right
to designate, a director of ASAT, (ii) the Transaction Agreements, the
transactions contemplated thereby, the terms and conditions thereof or any
discussions, correspondence or other communications among the parties to the
Transaction Agreements or their respective Representatives relating to the
Transaction Agreements or any of the transactions contemplated thereunder and
(iii) documents and information concerning QPL, any of its Affiliates or any
ASAT Company furnished to any of the Investors in connection with the due
diligence review conducted by the Investors in evaluating QPL, its Affiliates,
the ASAT Companies and the transactions contemplated by the Transaction
Agreements; provided that the term "Confidential Information" does not include
information which (x) was or becomes generally available publicly (other than as
a result of a disclosure by a Shareholder or its Representatives in violation of
any confidentiality provision contained in this Agreement, Transaction
Agreements or any confidentiality agreement executed in accordance with the
Transaction Agreements), (y) is disclosed publicly by ASAT (including by way of
public filings with the United States Securities and Exchange Commission or
Nasdaq and any informational meetings between ASAT and analysts and investors
which ASAT treats as non-confidential), or (z) becomes available to a
Shareholder on a non-confidential basis from a source other than ASAT, any
regulatory entity, or another Shareholder or its Representatives, provided that
such source is not, to the best of such Shareholder's knowledge, bound by a
confidentiality agreement with ASAT or another Person.
5.2 Non-Competition by QPL. (a) Save as otherwise provided in this
Section 5.2(a), for so long as the QPL Group collectively beneficially owns,
directly or indirectly, at least 20% of the outstanding Shares, the restrictions
set forth in this Section 5.2 shall apply. Once the QPL Group's collective
ownership of Shares falls below this 20% amount, the obligations of the QPL
Group under this Section shall remain in effect for one year thereafter.
Following an Initial Public Offering by ASAT, Public Sale by QPL, issue of
Shares upon exercise of the Warrants or issue of Shares to employees of any ASAT
Company pursuant to an exercise of stock options granted to such employee, this
Section 5.2 shall remain in effect and the 20% threshold referred to above shall
be reduced to reflect the dilutive effect or reduction of the numbers of Shares
held by QPL as a result of such event.
(b) The QPL Group shall not engage in the Businesses. The QPL Group
shall direct all future business opportunities in the Businesses that may come
to its attention to the ASAT Companies.
(c) The QPL Group shall not make, directly or indirectly through any
Affiliate, any direct or indirect Investment in, extend any lending to, or
provide any technical assistance (other than packaging technology assistance)
to, any Competitor without the prior written consent of the Investors, provided
that this Section 5.2(c) shall not prohibit the QPL
19
Group from making any Investment in a Competitor if (i) such Investment is in a
security of such Competitor that is listed on an international securities
exchange and (ii) taking into account such Investment, the QPL Group would not
itself or with any other group, directly or indirectly, own more than 5% of the
outstanding voting securities of such Competitor.
(d) The parties hereto agree that ASAT France will be excluded from
these restrictions, subject to compliance with the provisions of the ASAT France
Agreement entered into among, inter alia, ASAT Cayman and QPL on the Closing
Date.
5.3 Non-Competition by Investors. (a) If and for as long as an
Investor shall make an Investment in an entity that is a Competitor of any ASAT
Company, (i) each director of ASAT's Board appointed by such Investor, and any
alternate director and observer designated by such Investor, shall recuse
himself from any and all business matters addressed by the Board or any
committee thereof relating to such Competitor, and (ii) each director of ASAT's
Board appointed by such Investor shall be prohibited from serving as a director
on the board of such Competitor.
(b) In the event any of the ASAT Companies intends to acquire an
interest in any Competitor (a "Target"), and any Investor has an interest in
such Target, then each director of ASAT's Board representing such Investor, and
any alternate director and observer designated by such Investor, shall recuse
himself from any and all business matters addressed by the Board or any
committee thereof relating to the acquisition of such Target.
5.4 Definitions. For purposes of Sections 5.2 and 5.3:
(a) "Businesses" means the design, assembly and testing of
integrated circuit packages and the marketing and sales thereof.
(b) "Competitor" means any entity engaged in any of the
Businesses that sells into markets in which any ASAT Company, ASAT France or
ASAT Switzerland sells (either directly, through an ASAT Company or through
Semiconductor Consultants B.V.).
(c) "Investment" in any entity means any investment in share
capital of such entity (including common or preferred shares) or the equivalent,
including without limitation any instrument, security, option, note or agreement
exercisable for, convertible into or providing for the issue, exchange or
transfer of shares or similar interests in the share capital of such entity.
(d) "QPL Group" means QPL and its Affiliates (other than the
ASAT Companies).
20
ARTICLE 6
QPL BANKRUPTCY; INDEMNIFICATION
6.1 QPL Bankruptcy Event. (a) Notwithstanding anything in this
Agreement or any other Transaction Agreement to the contrary, if a QPL
Bankruptcy Event shall have occurred, then (i) AOF may require all the directors
appointed or nominated by QPL (including the Independent Director) pursuant to
Section 2.1 to resign and such vacancies shall be filled in accordance with
Section 2.3(b), and (ii) QPL shall have no rights (but shall have the
obligations) under Article 2 and Article 4. Upon any Sale of Shares (other than
a Public Sale) owned by QPL by a court, liquidator, court appointed
administrator, trustee in bankruptcy or other person administering QPL following
a QPL Bankruptcy Event to a Third Party that is not a Financial Creditor of QPL
or any ASAT Company, such Third Party (x) shall be entitled to appoint under
Section 2.1(a) the number of directors specified in Section 2.1(b) based upon
its shareholding in ASAT as if its name was substituted for QPL (the maximum
number of directors such Third Party shall be entitled to appoint hereunder
shall be two), and (y) shall have the other rights of a Shareholder under
Articles 2 and 4 (except Section 4.3), provided that in each such case such
Third Party shall have executed a deed of adherence agreeing to be bound by the
terms and conditions of this Agreement as a shareholder and as if such Third
Party's name were substituted for QPL herein.
(b) "QPL Bankruptcy Event" shall mean in relation to QPL or any
Affiliate of QPL that directly or indirectly owns Shares, the insolvency,
liquidation, amalgamation, reconstruction, reorganization, administration,
administrative or other receivership, or dissolution of that person, and any
step taken (including, but without limitation, the presentation of a petition or
the passing of a resolution) for or with a view to any of the foregoing other
than a members' voluntary liquidation or voluntary scheme of arrangement solely
for the purpose of a bona fide scheme of solvent amalgamation or reconstruction.
6.2 Indemnification. Each Shareholder hereby indemnifies the other
Shareholders and their respective Affiliates ("Indemnitees") against and agrees
to hold them harmless from and against any and all damage, loss, liability and
expense (including, without limitation, reasonable expenses of investigation and
reasonable attorneys' fees and expenses in connection with any action, suit or
proceeding, as incurred) incurred or suffered by any Indemnitee arising out of
any breach of any covenant or agreement made or to be performed by such
Shareholder pursuant to this Agreement.
ARTICLE 7
MISCELLANEOUS
7.1 Ong Lawsuit. The parties hereto acknowledge that ASAT HK and QPL
are currently involved in a lawsuit initiated by a former employee of ASAT HK,
Xx. Xxx Xx Xxxxx. Xx. Xxx has claimed that QPL and ASAT HK promised but failed
to allot to him shares of ASAT HK. QPL hereby agrees to use all reasonable
endeavors (i) to defend vigorously the
21
claim if QPL is advised such a defence will (on a balance of probabilities) win,
or, if not, resolve this lawsuit out of court and (ii) if any compensation is to
be paid to Xx. Xxx in connection with such resolution, to structure such payment
as a cash only payment by QPL not involving an issuance of shares of any of the
ASAT Companies. QPL shall cooperate and consult in good faith with the other
Shareholders and shall not agree to any settlement or other arrangement in
respect of such claim that in any respect creates any liability or obligation
for the account of any ASAT Company or other Shareholders without the other
Shareholders' consent. If for any reason any equity interests are required to be
transferred or issued to Xx. Xxx in connection with this dispute (which QPL
undertakes vigorously to defend if QPL is advised such a defence will (on a
balance of probabilities) win), then QPL shall transfer to Xx. Xxx the number of
Shares required to satisfy the dispute (such Shares shall be Shares owned by QPL
at such time or Shares obtained by QPL in the open market) and shall take all
actions necessary to ensure that ASAT does not have to issue any Shares in
connection with this dispute. In agreeing to the matters set forth in this
Section 7.1, the parties hereto are in no way admitting any liability on the
part of QPL, any ASAT Company or any of their Affiliates. Reference to "QPL" in
this Section 7.1 shall refer solely to QPL International Holdings Limited, and
not TIIC or QPL US.
7.2 Entire Agreement. This Agreement and the other Transaction
Agreements constitute the entire agreement among the parties hereto and thereto
and supersede all prior agreements and understandings, both oral and written,
among all of the parties hereto and thereto with respect to the subject matter
hereof and thereof. No representation, inducement, promise, understanding,
condition or warranty not set forth herein has been made or relied upon by any
party hereto.
7.3 Binding Effect; Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
successors, legal representatives and permitted assigns (except as to Article 2
which shall not be binding upon ASAT and for which purposes ASAT is not a party
to this Agreement). Nothing in this Agreement, expressed or implied, is intended
to confer on any Person other than the parties hereto, and their respective
heirs, successors, legal representatives and permitted assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
7.4 Assignment. No party hereto may assign, delegate or otherwise
Transfer any of its rights or obligations under this Agreement, except that any
Person acquiring Shares who is required by the terms of this Agreement to become
a party hereto shall execute and deliver to ASAT a deed of adherence in the form
of Annex B to be bound by this Agreement and shall thenceforth be a
"Shareholder", and any Shareholder who ceases to beneficially own any Shares
shall cease to be bound by the terms hereof (other than Sections 3.3, 5.1, 5.2,
6.2 and Article 7).
7.5 Amendment; Waiver; Termination. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(b) No failure or delay by any party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof
22
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
(c) This Agreement shall terminate and be of no further force or
effect (i) as to (A) AOF and CAIP, (B) QPL, and (C) the Co-Investors (the
Shareholders in clauses (A) and (C) being treated as a single Shareholder and
their holdings of Shares being calculated on a combined basis for purposes of
this Section 7.5(c)), when such Shareholder and its Permitted Transferees ceases
to own, directly or indirectly, at least 5% of the outstanding Shares or (ii)
when only one Shareholder remains subject to this Agreement.
(d) Notwithstanding Section 7.5(c), (i) Sections 5.1, 5.2, 6.2 and
Article 7 shall survive any termination of this Agreement, (ii) upon a Transfer
of Shares by AOF or QPL which would result in a termination of this Agreement as
to such Person pursuant to Section 7.5(c)(i), such Person shall cause its
appointed directors to resign in accordance with Section 2.1(d) and such
directors shall not be entitled to vote and shall not be counted as attending
the Board meeting at the time the Board elects a successor as provided in
Section 2.3(c), and (iii) upon a Transfer of Shares by AOF or QPL which would
result in a termination of this Agreement pursuant to Section 7.5(c)(ii), the
one remaining Shareholder shall vote its Shares and take all actions necessary,
and if such Shareholder has appointed any directors pursuant to Section 2.1 then
it agrees to procure that its appointed directors will vote and take all action
necessary, to comply with Sections 2.3(b) and (c) in filling any vacancy on the
Board resulting from a resignation required under Section 2.1(d) and subclause
(ii) above due to the Transfer of Shares by QPL or AOF.
7.6 Notices. All notices, requests and other communications given or
made pursuant hereto or pursuant to any other agreement among the parties,
unless otherwise specified, shall be in writing and shall be deemed to have been
duly given or made if sent by fax (with confirmation in writing), delivered
personally or sent by registered or certified mail (postage prepaid, return
receipt requested) to the parties at the fax number or address set forth in
Annex C hereto or at such other addresses as shall be furnished by the parties
by like notice. Such notice, request or communication shall be deemed to have
been given or made on the date of receipt by the recipient thereof if received
prior to 5 p.m. in the place of receipt and such day is a Business Day in the
place of receipt. Otherwise, any such notice, request or communication shall be
deemed not to have been received until the next succeeding Business Day in the
place of receipt. Any Person who becomes a Shareholder shall provide its address
and fax number to ASAT, which shall promptly provide such information to each
other Shareholder.
7.7 Section Headings. The headings of Sections in this Agreement are
provided for convenience only and will not affect its construction or
interpretation.
7.8 Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
7.9 Severability. If any provision contained in this Agreement shall
for any reason be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or
23
unenforceability shall not affect any other provisions of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. It is the intention of the Parties
that if any of the restrictions or covenants contained herein is held to cover a
geographic area or to be for a length of time which is not permitted by
applicable law, or in any way construed to be too broad or to any extent
invalid, such provision shall not be construed to be null, void and of no
effect, but to the extent such provision would be valid or enforceable under
applicable law, a court of competent jurisdiction shall construe and interpret
or reform this Agreement to provide for a covenant having the maximum
enforceable geographic area, time period and other provisions (not greater than
those contained herein) as shall be valid and enforceable under such applicable
law.
7.10 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of England.
7.11 Specific Enforcement. Each party hereby acknowledges that the
remedies at law of the other parties for a breach or threatened breach of this
Agreement would be inadequate and, in recognition of this fact, any party to
this Agreement, without posting any bond, and in addition to all other remedies
which may be available, shall be entitled to obtain equitable relief in the form
of specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy which may then be available.
7.12 Submission to Jurisdiction. Each party hereby irrevocably
agrees that the courts of England shall have non-exclusive jurisdiction to
settle any dispute which may arise out of or in connection with this Agreement
and that accordingly any suit, action or proceedings (together referred to as
"Proceedings") arising out of or in connection therewith may be brought in such
courts. Each party hereto irrevocably waives any objection which it may have now
or hereafter to the laying of the venue of any Proceedings in any such court and
any claim that any such Proceedings have been brought in an inconvenient forum
and hereby further irrevocably agrees that a judgment in any Proceedings brought
in the courts of England shall be conclusive and binding upon it and may be
enforced in the courts of any jurisdiction.
7.13 Agent for Service. (a) QPL, TIIC and QPL US each appoints RB
Secretariat Limited of Beaufort House, Tenth Floor, 00 Xx. Xxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX to be its agent for the receipt of service of process in
England. Each Investor and ASAT appoints Trusec Limited of 00 Xxxxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX to be its agent for the receipt of service of process in
England. Each party agrees that any Service Document (as defined below) may be
effectively served on it in connection with Proceedings in England and Wales by
service on its agent.
(b) Any Service Document shall be deemed to have been duly served on
a party if marked for the attention of such party's agent at the address set out
above in Section 7.8(a) in respect of such agent or such other address within
England or Wales as may be notified to the other parties and: (i) left at the
specified address; or (ii) sent to the specified address by first class post. In
the case of (i), the Service Document shall be deemed to have been duly served
when it is left. In the case of (ii), the Service Document shall be deemed to
have been duly served two clear UK business days after the date of posting.
24
(c) "Service Document" means a writ, summons, order, judgment or
other process issued out of the courts of England and Wales in connection with
any Proceedings, "UK Business Days" means a day other than a Saturday, Sunday or
any day on which banks located in England are obligated to close.
7.14 UK Creditor Arrangements. Without the prior written consent of
the Investors, QPL shall not agree to any changes to (i) the UK Creditor Charge
Agreements or related arrangements that would materially and adversely prejudice
AOF's, CAIP's or the other Investors' rights under this Agreement or the value
of Shares subject to the Investors Share Charge (as defined in the Acceptance
and Payment Agreement) or the UK Option Agreement; or (ii) to the provisions of
Section 13.11 of the Acceptance and Payment Agreement. QPL shall promptly notify
all other Shareholders of, and reasonably describe in such notice the scope and
nature of, any amendments to the UK Creditor Charge Agreements and any default
thereunder. QPL shall promptly provide to the Investors copies of draft
agreements and correspondence regarding such amendments or defaults reasonably
requested by the Investors.
7.15 QPL Obligations. As applicable, (i) all agreements and
obligations of QPL herein shall be construed as agreements and obligations of
such Subsidiary that directly or indirectly owns Shares and QPL shall cause such
Subsidiary to fulfil such agreements and obligations, which shall be joint and
several among QPL and its Subsidiaries, and (ii) all agreements and obligations
herein of Subsidiaries of QPL that are Shareholders shall be construed as
agreements and obligations of QPL.
25
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
ASAT HOLDINGS LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
QPL INTERNATIONAL HOLDINGS
LIMITED
By: /s/ Li Xxxx Xxx
-------------------------
Name: Li Xxxx Xxx
Title: Director
THE INDUSTRIAL INVESTMENT
COMPANY LIMITED
By: /s/ Li Xxxx Xxx
------------------------
Name: Li Xxxx Xxx
Title: Director
QPL (US) INC.
By: /s/ Xxxxx Xxxx Kit Xxxx
-------------------------
Name: Xxxxx Xxxx Kit Tong
Title: Authorised Signatory
CHASE ASIA INVESTMENT
PARTNERS II (Y), LLC
By: Chase Asia Investment Partners, L.P.,
its member
By: Chase Asia Equity Partners, L.P.,
its general partner
By: CCP Asia Equity Company,
a managing general partner
By: /s/ Xxxxx Xxxx
--------------------------
Name: Xxxxx Xxxx
Title: Managing Director
ASIA OPPORTUNITY FUND, L.P.
By: Asia Opportunity Company, its general
partner
By: /s/ Xxxxx Xxxx
--------------------------
Name: Xxxxx Xxxx
Title: Managing Director
ORCHID HONG KONG
INVESTMENT HOLDINGS
By: Orchid Asia II, L.P., its sole member
By: Orchid Asia Holdings, LLC,
its general partner
By: /s/ Xxxxxxx Xx
-------------------------
Name: Xxxxxxx Xx
Title: Vice President
RESERVOIR-OLYMPUS II, L.P.
By: Olympus Capital Holdings Asia, L.L.C.,
its general partner
By: Olympus Capital Holdings Asia,
its managing member
By: /s/ Xxxxxx Xxxxx
---------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
OLYMPUS HOLDINGS, L.P.
By: Olympus Management GP Corporation,
its general partner
By: /s/ Xxxxxx Xxxxx
-------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
OLYMPUS CAPITAL ASIA, L.P.
By: Olympus Capital Holdings Asia, L.L.C.,
its general partner
By Olympus Capital Holdings Asia,
its managing member
By: /s/ Xxxxxx Xxxxx
-------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
OLYMPUS CAPITAL ASIA OFFSHORE, L.P.
By: Olympus Capital Holdings Asia, L.L.C.,
its general partner
By Olympus Capital Holdings Asia,
its managing member
By: /s/ Xxxxxx Xxxxx
-------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
OLYMPUS CAPITAL HOLDINGS ASIA I, L.P.
By: Olympus Capital Holdings Asia, L.L.C.,
its general partner
By: Olympus Capital Holdings Asia,
its managing member
By: /s/ Xxxxxx Xxxxx
-------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
OLYMPUS KB, L.P.
By: Olympus Capital Holdings Asia, L.L.C.,
its general partner
By: Olympus Capital Holdings Asia,
its managing member
By: /s/ Xxxxxx Xxxxx
-------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ZAM-OLYMPUS CO-INVEST, L.L.C.
By: Olympus Capital Holdings Asia, L.L.C.,
its managing member
By Olympus Capital Holdings Asia,
its managing member
By: /s/ Xxxxxx Xxxxx
-------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
OLYMPUS-ASAT I, L.L.C.
By: Olympus Capital Holdings Asia, L.L.C.,
its managing member
By: Olympus Capital Holdings Asia,
its managing member
By: /s/ Xxxxxx Xxxxx
------------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
OLYMPUS-ASAT II, L.L.C.
By: Olympus Capital Holdings Asia, L.L.C.,
its managing member
By: Olympus Capital Holdings Asia,
its managing member
By: /s/ Xxxxxx Xxxxx
-----------------
Name: Xxxxxx Xxxxx
Title: Chief Financial Officer
ANNEX A
List of Co-Investors
Orchid Hong Kong Investment Holdings
Olympus Capital Holdings Asia I, L.P.
Reservoir-Olympus II, L.P.
Olympus KB, L.P.
Olympus Capital Asia, L.P.
Olympus Capital Asia Offshore, L.P.
Olympus Holdings, L.P.
ZAM-Olympus Co-Invest, L.L.C.
A - 1
ANNEX B
Deed of Adherence
B - 1
ANNEX C
Addresses for Notices
If to CAIP or AOF, to:
Chase Asia Investment Partners II (Y), LLC
Asia Opportunity Fund, L.P.
Suite 3003, 30/F
One International Finance Centre
0 Xxxxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxx Xxxx
Attention: Chief Executive Officer
Fax: 000-0000-0000
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
3007 Xxxxxxxxx Xxxxx
00 Xxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Attention: Xxxxxxx Xxxx, Esq.
Fax: 000-0000-0000
If to Olympus Capital Holdings Asia I, L.P.,
Reservoir-Olympus II, L.P.,
Olympus KB, L.P.,
Olympus Capital Asia, L.P.,
Olympus Capital Asia Offshore, L.P.,
Olympus Holdings, L.P. and/or
ZAM-Olympus Co-Invest, L.L.C. to:
x/x Xxxxxxx Xxxxxxx Xxxxxxxx Asia
000 X. 00/xx/ Xxxxxx
00/xx/ Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxx
Fax: 000-000-0000
and
c/o Olympus Capital Holdings Asia
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx
Attn: Xxxxxxxxx X. Xxxx
Fax: 000-0000-0000
C - 1
If to Orchid Hong Kong Investment Holdings, to
c/o Orchid Asia Holdings, L.L.C.
000 Xxxxxxxxxx Xx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Fax: 0-000-000-0000
and
00/xx/ Xxxxx, Xxxxxxx Xxxxxxxx
00 Xxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Attention: Xxxxxxx Xx
Fax: 000-0000-0000
If to QPL, to:
QPL International Holdings Limited
2nd Floor, QPL Industrial Building
138 Texaco Road,
Tsuen Wan, New Territories
Hong Kong
Attention: Chief Executive Officer
Fax: 000-0000-0000
with a copy to:
Xxxxxxxx Xxxxxx
00/xx/ Xxxxx, Xxxxxxxxx Xxxxx
00-00 Xxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Attention: Xxxxxxxxxxx X. Xxxxxxxx, Esq.
Fax: 000-0000-0000
If to ASAT, to:
ASAT Holdings Limited
x/x XXXX Xxxxxxx
00xx Xxxxx, XXX Industrial Building
138 Texaco Road,
Tsuen Wan, New Territories
Hong Kong
Attention: Chief Executive Officer
Fax: 000-0000-0000
with a copy to Milbank, Tweed, Xxxxxx & XxXxxx at the above address.
C - 2
