Exhibit 99.2
Form of Stock Option Plan
ASAT HOLDINGS LIMITED
NON-QUALIFIED STOCK OPTION AGREEMENT
pursuant to the
ASAT HOLDINGS LIMITED
STOCK OPTION PLAN
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Optionee:
Grant Date:
Per Share Exercise Price:
Number of Option Shares subject to this Option:
(equivalent to American Depositary Shares, each representing 5 Ordinary
Shares)
* * * * *
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement"), dated as
of the Grant Date specified above, is entered into by and between ASAT Holdings
Limited a Cayman Islands company (the "Company"), and the Optionee specified
above, pursuant to the ASAT Holdings Limited Stock Option Plan, as in effect and
as amended from time to time (the "Plan") and is subject to the successful
consummation of the Company's initial Public Offering; and
WHEREAS, it has been determined under the Plan that it would be in the
best interests of the Company to grant the non-qualified stock option provided
for herein to the Optionee;
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NOW, THEREFORE, in consideration of the mutual covenants and premises
hereinafter set forth and for other good and valuable consideration, the parties
hereto hereby mutually covenant and agree as follows:
1. Incorporation By Reference; Plan Document Receipt. This Agreement is
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subject in all respects to the terms and provisions of the Plan (including,
without limitation, any amendments thereto adopted at any time and from time to
time unless such amendments are expressly intended not to apply to the grant of
the option hereunder), all of which terms and provisions are made a part of and
incorporated in this Agreement as if they were each expressly set forth herein.
Any capitalized term not defined in this Agreement shall have the same meaning
as is ascribed thereto under the Plan. The Optionee hereby acknowledges receipt
of a true copy of the Plan and that the Optionee has read the Plan carefully and
fully understands its content. In the event of any conflict between the terms
of this Agreement and the terms of the Plan, the terms of the Plan shall
control.
2. Definitions. Capitalized Terms shall have the meaning ascribed to
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them in the Plan. In addition, for purposes of this Agreement, the following
terms shall have the meanings set forth below:
2.1 "Cause," if the Optionee is a party to an employment agreement,
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shall have the same meaning as in such employment agreement, otherwise, "Cause"
means (i) any act or omission that constitutes a material breach by the Optionee
of any material agreement with, or material written policy of, the Company or
any Subsidiary, (ii) the failure or refusal of the Optionee to follow any lawful
reasonable written direction of the Board or any employee of the Company or any
Subsidiary to whom the Optionee reports, (iii) the commission by the Optionee of
a felony or a crime involving moral turpitude or the perpetration by an employee
of a common law fraud, or (iv) any other willful act or omission by the Optionee
which is or will be materially injurious to, the financial condition or business
reputation of, or is otherwise materially injurious to the Company.
2.2 "Disability," if the Optionee is a party to an employment
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agreement, shall have the same meaning as in such employment agreement,
otherwise, "Disability" means disability as determined by the Board in
accordance with the standards and procedures similar to those under the
Company's long-term disability plan, if any. Subject to the first sentence of
this Section 2.2, at any time that the Company does not maintain a long-term
disability plan, "Disability" shall mean any physical or mental disability which
is determined to be total and permanent by a doctor selected in good faith by
the Company.
3. Grant of Option. The Company hereby grants to the Optionee, as of the
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Grant Date specified above, a non-qualified stock option (this "Stock Option")
to acquire from the
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Company at the Per Share Exercise Price specified above, the aggregate number of
Ordinary Shares specified above (the "Option Shares"). This Stock Option is not
to be treated as (and is not intended to qualify as) an incentive stock option
within the meaning of Section 422 of the Code. The grant of this Stock Option is
contingent upon the successful consummation of the Company's initial Public
Offering and this Agreement shall be of no force and effect absent the
consummation of such initial Public Offering.
4. No Dividend Equivalents. The Optionee shall not be entitled to
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receive a cash payment in respect of the Option Shares underlying this Stock
Option on any dividend payment date for the Ordinary Shares.
5. Exercise of this Stock Option.
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5.1 This Stock Option shall become exercisable as follows:
. 10%, on the date six months after the consummation of the
Company's initial Public Offering, provided the Optionee is
then employed by the Company and/or one of its Subsidiaries;
. 15%, on the first anniversary of the consummation of the
Company's initial Public Offering, provided the Optionee is
then employed by the Company and/or one of its Subsidiaries;
. 25%, on the second anniversary of the consummation of the
Company's initial Public Offering, provided the Optionee is
then employed by the Company and/or one of its Subsidiaries;
. 25% on the third anniversary of the consummation of the
Company's initial Public Offering, provided the Optionee is
then employed by the Company and/or one of its Subsidiaries;
and
. 25% on the fourth anniversary of the consummation of the
Company's initial Public Offering, provided the Optionee is
then employed by the Company and/or one of its Subsidiaries.
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5.2 The Board may, in its sole discretion, accelerate the
exercisability of any unexercisable portion of this Stock Option at any time.
5.3 Unless earlier terminated in accordance with the terms and
provisions of the Plan and/or this Agreement, this Stock Option shall expire and
shall no longer be exercisable after the expiration of ten years from the Grant
Date (the "Option Period").
5.4 In no event shall this Stock Option be exercisable for a
fractional share of Ordinary Shares.
6. Method of Exercise and Payment. This Stock Option shall be exercised
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by the Optionee by delivering to the Secretary of the Company or his designated
agent on any business day (the "Exercise Date") a written notice, in such manner
and form as may be required by the Company, specifying the number of the Option
Shares the Optionee then desires to acquire (the "Exercise Notice"). The
Exercise Notice shall be accompanied by payment of the aggregate Per Share
Exercise Price for such number of the Option Shares to be acquired upon such
exercise. Such payment shall be made in the manner set forth in Section 6.4 of
the Plan.
7. Termination of Employment.
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7.1 If the Optionee's employment with the Company or any Subsidiary
is terminated for any reason, any unexercisable portion of this Stock Option
shall terminate on the date of such termination and such portion of this Stock
Option shall be canceled by the Company.
7.2. If the Optionee's employment with the Company or any Subsidiary
is terminated for Cause, such Optionee's rights, if any, to exercise any then
exercisable portion of the Stock Option, shall terminate on the date of such
termination for Cause and such portion of the Stock Option shall be cancelled by
the Company.
7.3. If the Optionee's employment with the Company or any Subsidiary
is terminated for any reason other than death, Disability or by the Company for
Cause, such Optionee's rights, if any, to exercise any then exercisable portion
of this Stock Option shall terminate ninety (90) days after the date of such
termination (but not beyond the expiration of the Option Period) and thereafter
such Stock Option shall be cancelled by the Company; provided, however, that if
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during such ninety (90) day period the Optionee becomes employed by an entity
which competes in any respect with the Company, any then exercisable portion of
this Stock Option shall immediately terminate and such portion of this Stock
Option shall be cancelled by the Company.
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7.4 If the Optionee's employment with the Company or any Subsidiary
is terminated as a result of the Optionee's death or Disability, such Optionee's
(and such Optionee's estate's designated beneficiaries or other legal
representative, as the case may be, and as determined by the Board) rights, if
any, to exercise any then exercisable portion of this Stock Option shall
terminate one year after the date of such termination (but not beyond expiration
of the Option Period) and thereafter such Stock Option shall be cancelled by the
Company.
7.5 The Board or the Committee, in its sole discretion, may determine
that the Optionee's Stock Option, to the extent exercisable immediately prior to
any termination of employment or as a result thereof, may remain exercisable for
an additional specified time period after the period specified above in this
Section 7 expires (subject to any other applicable terms and provisions of the
Plan and the relevant Award Agreement), but not beyond the expiration of the
Option Period.
8. Non-transferability.
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8.1 Except as provided in Section 8.2, (i) this Stock Option, and any
rights or interests therein, shall not be sold, exchanged, transferred, assigned
or otherwise disposed of in any way at any time by the Optionee (or any
beneficiary(ies) of the Optionee), other than by testamentary disposition by the
Optionee or the laws of descent and distribution, (ii) this Stock Option shall
not be pledged, encumbered or otherwise hypothecated in any way at any time by
the Optionee (or any beneficiary(ies) of the Optionee) and shall not be subject
to execution, attachment or similar legal process, and (iii) any attempt to
sell, exchange, pledge, transfer, assign, encumber or otherwise dispose of or
hypothecate this Stock Option, or the levy of any execution, attachment or
similar legal process upon this Stock Option, contrary to the terms of this
Agreement and/or the Plan shall be null and void and without legal force or
effect.
8.2 During the Optionee's lifetime, the Optionee may, with the
consent of the Committee, transfer without consideration all or any portion of
this Option to one or more members of his or her Immediate Family, to a trust
established for the exclusive benefit of one or more members of his or her
Immediate Family, or to a partnership of which members of his or her Immediate
Family are the only partners. For purposes of this Agreement, Immediate Family
means the Optionee's children, stepchildren, grandchildren, parents,
stepparents, grandparents, spouse, siblings (including half brothers and
sisters), in-laws, and relationships arising because of legal adoption.
9. Entire Agreement; Amendment. This Agreement contains the entire
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agreement between the parties hereto with respect to the subject matter
contained herein, and supersedes all prior agreements or prior understandings,
whether written or oral, between the parties relating to
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such subject matter. The Board or the Committee shall have the right, in its
sole discretion, to modify or amend this Agreement from time to time in
accordance with and as provided in the Plan; provided, however, that no such
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modification or amendment shall materially adversely affect the rights of the
Optionee under this Stock Option without the consent of the Optionee. This
Agreement may also be modified or amended by a writing signed by both the
Company and the Optionee. The Company shall give written notice to the Optionee
of any such modification or amendment of this Agreement as soon as practicable
after the adoption thereof.
10. Notices. Any Exercise Notice or other notice which may be required or
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permitted under this Agreement shall be in writing, and shall be delivered in
person or via facsimile transmission, overnight courier service or certified
mail, return receipt requested, postage prepaid, properly addressed as follows.
10.1 If such notice is to the Company, to the attention of the Chief
Financial Officer of ASAT Holdings Limited, 2nd Floor, QPL Industrial Building,
138 Texaco Road, Tsuen Wan, New Territories, Hong Kong (000-0000-0000 fax), or
at such other address as the Company, by notice to the Optionee, shall designate
in writing from time to time.
10.2 If such notice is to the Optionee, at his or her address as shown
on the Company's records, or at such other address as the Optionee, by notice to
the Company, shall designate in writing from time to time.
11. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of Hong Kong, without reference to the principles of
conflict of laws thereof.
12. Compliance with Laws. The issuance of this Stock Option (and the
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Option Shares upon exercise of this Stock Option) pursuant to this Agreement
shall be subject to, and shall comply with, any applicable requirements of any
federal and state securities laws, rules and regulations (including, without
limitation, the provisions of the Securities Act of 1933, the Securities
Exchange Act of 1934 and the respective rules and regulations promulgated
thereunder) and any other law or regulation applicable thereto. The Company
shall not be obligated to issue this Stock Option or any of the Option Shares
pursuant to this Agreement if any such issuance would violate any such
requirements.
14. Binding Agreement; Assignment. This Agreement shall inure to the
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benefit of, be binding upon, and be enforceable by the Company and its
successors and assigns. The Optionee shall not assign any part of this
Agreement without the prior express written consent of the Company.
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15. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument.
16. Headings. The titles and headings of the various sections of this
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Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
17. Further Assurances. Each party hereto shall do and perform (or shall
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cause to be done and performed) all such further acts and shall execute and
deliver all such other agreements, certificates, instruments and documents as
any party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the Plan and the consummation of
the transactions contemplated thereunder.
18. Severability. The invalidity or unenforceability of any provisions of
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this Agreement in any jurisdiction shall not affect the validity, legality or
enforceability of the remainder of this Agreement in such jurisdiction or the
validity, legality or enforceability of any provision of this Agreement in any
other jurisdiction, it being intended that all rights and obligations of the
parties hereunder shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and the Optionee has hereunto set his
hand, all as of the Grant Date specified above.
ASAT Holdings Limited
By:_____________________________
Name: Authorized Representative
Title:
________________________________
Optionee
