EXHIBIT 4.4
ASAT (FINANCE) LLC
12 1/2% SERIES B SENIOR NOTE DUE 2006
CUSIP No. ____________
No. B-1 $___________________
ASAT (Finance) LLC, a Delaware limited liability company (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of ___________________ Dollars, on
November 1, 2006.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
Reference is made to the further provisions of this Security on the reverse
side, which will, for all purposes, have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed as of __________________, 2000.
ASAT (FINANCE) LLC
By:_______________________
Name:_____________________
Title:____________________
Attest:____________________
Name:______________________
Title:_____________________
This is one of the Securities described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:_____________________________
Authorized Signatory
Dated: _______________________, 2000
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ASAT (FINANCE) LLC
12 1/2% Series A Senior Note due 2006
Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized
representative of The Depositary Trust Company (▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) ("DTC"), to the Company or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES. UPON REQUEST, THE COMPANY WILL PROMPTLY MAKE AVAILABLE TO
HOLDERS OF THIS NOTE THE ISSUE PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE
ISSUE DATE, AND THE YIELD TO MATURITY OF THIS NOTE. HOLDERS SHOULD CONTACT ASAT
LIMITED, /14/TH FLOOR, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
ATTENTION: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, DIRECTOR AND CHIEF FINANCIAL OFFICER.
1. Interest. ASAT (Finance) LLC, a Delaware limited liability company
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(hereinafter called the "Company," which term includes any successors under the
Indenture hereinafter referred to), promises to pay interest on the principal
amount of this Security at the rate of 12 1/2% per annum. To the extent it is
lawful, the Company promises to pay interest on any interest payment due but
unpaid on such principal amount at a rate of 12 1/2% per annum in the manner set
forth in the Indenture.
The Company will pay interest semi-annually on May 1 and November 1 of each
year (each, an "Interest Payment Date"), commencing November 1, 2000. Interest
on the Securities will accrue from the most recent date to which interest has
been paid or, if no interest has been paid on the Securities, from the date of
the original issuance. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
2. Method of Payment. The Company shall pay interest (and Liquidated
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Damages and Additional Amounts, if any) on the Securities (except defaulted
interest) to the Persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date. Holders
must surrender Securities to a Paying Agent to collect principal payments.
Except as provided below, the Company shall pay principal, premium, and interest
(and Liquidated Damages and Additional Amounts, if any) in such coin or currency
of the United States of America as at the time of payment shall be legal tender
for payment of public and private debts ("Cash"). The Securities will be
payable as to principal, premium and interest (and Liquidated Damages and
Additional Amounts, if any) at the office or agency of the Company maintained
for such purpose within the Borough of Manhattan, the City and State of New York
or, at the option of the Company, payment of principal, premium and interest
(and Liquidated Damages and Additional Amounts, if any) may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
and provided that payment by wire transfer of immediately available funds will
be required with respect to principal of and interest (and Liquidated Damages
and Additional Amounts, if any) and premium on all Global Securities and all
other Securities the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent at least 5 Business Days prior
to the relevant record date.
3. Paying Agent and Registrar. Initially, The Chase Manhattan Bank (the
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"Trustee"), will act as Paying Agent and Registrar. The Company may change any
Paying Agent, Registrar or co-Registrar without notice to the Holders. The
Company may, subject to certain exceptions, act as Paying Agent, Registrar or
co-Registrar.
4. Indenture. The Company issued the Securities under an Indenture, dated
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as of October 29, 1999 (the "Indenture"), among the Company, the Guarantors
named therein and the Trustee. Capitalized terms herein are used as defined in
the Indenture unless otherwise defined herein. The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act, as in effect on the date of the Indenture.
The Securities are subject to all such terms, and Holders of Securities are
referred to the Indenture and said Act for a statement of them. The Securities
are senior obligations of the Company limited in aggregate principal amount
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to $155,000,000. Each Holder of this Security, by accepting the same, (a) agrees
to and shall be bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be provided in the Indenture and (c)
appoints the Trustee his attorney-in-fact for such purpose.
5. Redemption.
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(a) Except as provided in this Paragraph 5 or in Article III of the
Indenture, the Company shall not have the right to redeem any Securities.
The Securities may be redeemed in whole or from time to time in part at any
time on and after November 1, 2003, at the option of the Company, at the
Redemption Price (expressed as a percentage of principal amount) set forth
below with respect to the indicated Redemption Date, in each case (subject
to the right of Holders of record on a Record Date that is on or prior to
such Redemption Date to receive interest due on the Interest Payment Date
to which such Record Date relates), plus any accrued but unpaid interest
(and Liquidated Damages and Additional Amounts, if any) to the Redemption
Date.
If redeemed during
the 12-month period
commencing November 1, Redemption Price
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2003............................ 106.250%
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2004............................ 103.125%
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20-05 and thereafter............ 100.000%
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(b) Notwithstanding the foregoing, prior to November 1, 2002, upon a
Public Equity Offering of Qualified Capital Stock for cash of the ASAT
Holding s, up to 35% of the aggregate principal amount of the Securities
originally outstanding may be redeemed at the option of ASAT Holdings
within 60 days of such Public Equity Offering, with cash from the Net Cash
Proceeds of such Public Equity Offering, at a redemption price equal to
112.5% of the principal amount thereof, (subject to the right of Holders of
record on a Record Date to receive interest due on an Interest Payment Date
that is on or prior to such Redemption Date) together with accrued and
unpaid interest, Liquidated Damages and Additional Amounts, if any, to the
date of redemption; provided, however, that at least 65% of the aggregate
principal amount of the original aggregate principal amount of the
Securities remain outstanding.
(c) If, as a result of any change in or amendment to the laws,
regulations or published tax rulings of Hong Kong, the People's Republic of
China or the United States of America (or of any taxing authority thereof
or therein), which is proposed and becomes effective on or after the date
of the Indenture, in making any payment due or to become due under the
Securities or the Indenture, (i)(A) the Company is or would be required on
the next succeeding Interest Payment Date to pay Additional Amounts and (B)
each Guarantor is, or on the next succeeding Interest Payment Date would
be, unable, for reasons outside its control, to cause the Company to pay
amounts due under the Securities, and with respect to any amount due under
its Guarantee or this Indenture, each Guarantor is, or would be required on
the next succeeding Interest Payment Date, to pay Additional Amounts and
(ii) the payment of such Additional Amounts cannot be avoided by the use of
any reasonable measures available to the Company or such Guarantor, as the
case may be, the Securities may be redeemed at the option of the Company in
whole but not in part, at any time at a redemption price equal to 100% of
the principal amount thereof, plus accrued and unpaid interest to the date
of redemption.
(d) Any redemption of Securities will comply with the provisions of
Article III of the Indenture.
6. Notice of Redemption. Notice of redemption will be sent by first class
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mail, at least 30 days and not more than 60 days prior to the Redemption Date to
the Holder of each Security to be redeemed at such Holder's last address as then
shown upon the registry books of the Registrar. Securities may be redeemed in
part in multiples of $1,000 only.
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Except as set forth in the Indenture, from and after any Redemption Date,
if monies for the redemption of the Securities called for redemption shall have
been deposited with the Paying Agent on such Redemption Date, the Securities
called for redemption will cease to bear interest and the only right of the
Holders of such Securities will be to receive payment of the Redemption Price,
plus any accrued and unpaid interest (and Liquidated Damages and Additional
Amounts, if any) to the Redemption Date.
7. Denominations; Transfer; Exchange. The Securities are in registered
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form, without coupons, in denominations of $1,000 and integral multiples of
$1,000. A Holder may register the transfer of, or exchange Securities in
accordance with, the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Securities (a) selected for
redemption except the unredeemed portion of any Security being redeemed in part
or (b) for a period beginning 15 Business Days before the mailing of a notice of
an offer to repurchase or redemption and ending at the close of business on the
day of such mailing.
8. Persons Deemed Owners. The registered Holder of a Security may be
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treated as the owner of it for all purposes.
9. Unclaimed Money. If money for the payment of principal or interest
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remains unclaimed for two years, the Trustee and the Paying Agent(s) will pay
the money back to the Company at its written request. After that, all liability
of the Trustee and such Paying Agent(s) with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity. Except as set forth in the
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Indenture, if the Company irrevocably deposits with the Trustee, in trust, for
the benefit of the Holders, cash, U.S. Government Obligations or a combination
thereof, in such amounts as will be sufficient in the opinion of a nationally
recognized firm of independent public accountants selected by the Trustee, to
pay the principal of, premium, if any, and interest (and Liquidated Damages and
Additional Amounts, if any) on the Securities to redemption or maturity and
complies with the other provisions of the Indenture relating thereto, the
Company will be discharged from certain provisions of the Indenture and the
Securities (including the financial covenants, but excluding its obligation to
pay the principal of, premium, if any, and interest (and Liquidated Damages and
Additional Amounts, if any) on the Securities). Upon satisfaction of certain
additional conditions set forth in the Indenture, the Company may elect to have
its obligations discharged with respect to outstanding Securities.
11. Amendment; Supplement; Waiver. Subject to certain exceptions, the
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Indenture or the Securities may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Securities then outstanding, and any existing Default or Event of Default or
compliance with any provision may be waived with the consent of the Holders of a
majority in aggregate principal amount of the Securities then outstanding.
Without notice to or consent of any Holder, the parties thereto may under
certain circumstances amend or supplement the Indenture or the Securities to,
among other things, cure any ambiguity, defect or inconsistency, or make any
other change that does not adversely affect the rights of any Holder of a
Security.
12. Restrictive Covenants. The Indenture imposes certain limitations on
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the ability of the Company and any Guarantors to, among other things, incur
additional Indebtedness and issue Preferred Stock, pay dividends or make certain
other Restricted Payments, enter into certain transactions with Affiliates,
incur Liens, sell assets and subsidiary stock, merge or consolidate with any
other Person or transfer (by lease, assignment or otherwise) substantially all
of the properties and assets of the Company. The limitations are subject to a
number of important qualifications and exceptions. The Company must
periodically report to the Trustee on compliance with such limitations.
13. Ranking. Payment of principal, premium, if any, and interest (and
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Liquidated Damages and Additional Amounts, if any) on the Securities is senior,
in the manner and to the extent set forth in the Indenture, to all existing and
future Indebtedness of the Company that is subordinated to the Securities.
14. Repurchase at Option of Holder.
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(a) If there is a Change of Control, the Company shall be required to
offer to purchase on the Change of Control Purchase Date all outstanding
Securities at a purchase price equal to 101% of the principal
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amount thereof, plus accrued and unpaid interest (and Liquidated Damages
and Additional Amounts, if any), if any, to the Change of Control Purchase
Date. Holders of Securities will receive a Change of Control Offer from the
Company prior to any related Change of Control Purchase Date and may elect
to have such Securities purchased by completing the form entitled "Option
of Holder to Elect Purchase" appearing below.
(b) The Indenture imposes certain limitations on the ability of the
Company, the Guarantors or any of their respective Subsidiaries to sell
assets and subsidiary stock. In the event the proceeds from a permitted
Asset Sale exceed certain amounts, as specified in the Indenture, the
Company will be required either to reinvest the proceeds of such Asset Sale
in a Related Business, repay certain Indebtedness, redeem the Notes or to
make an offer to purchase each Holder's Securities at 100% of the principal
amount thereof, plus accrued interest (and Liquidated Damages and
Additional Amounts, if any), if any, to the purchase date.
15. Guarantee.
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(a) As set forth more fully in the Indenture, the Persons constituting
Guarantors from time to time, in accordance with the provisions of the
Indenture, irrevocably, unconditionally and jointly and severally
guarantee, in accordance with Section 11.1 of the Indenture, to the Holder
and to the Trustee and its successors and assigns, that (i) the principal
of and interest on the Security will be paid, whether at the Maturity Date
or Interest Payment Dates, by acceleration, call for redemption upon a
Change of Control Offer, upon an Asset Sale Offer or otherwise, and all
other obligations of the Company to the Holder or the Trustee under the
Indenture or this Security will be promptly paid in full or performed, all
in accordance with the terms of the Indenture and this Security, and (ii)
in the case of any extension of payment or renewal of this Security or any
of such other obligations, they will be paid in full when due or performed
in accordance with the terms of such extension or renewal, whether at the
Maturity Date, as so extended, by acceleration, call for redemption, upon a
Change of Control Offer, upon an Asset Sale Offer or otherwise. Such
guarantees shall cease to apply, and shall be null and void, with respect
to any Guarantor who, pursuant to Article XI of the Indenture, is released
from its guarantees, or whose guarantees otherwise cease to be applicable
pursuant to the terms of the Indenture.
(b) When a successor assumes all the obligations of its predecessor
under the Securities and the Indenture, the predecessor will be released
from those obligations.
16. Defaults and Remedies. If any Event of Default occurs and is
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continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the then outstanding Securities may declare all the Securities to be
due and payable immediately. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency with
respect to the Company or any of its Significant Subsidiaries, all outstanding
Securities will become due and payable without further action or notice.
Securityholders may not enforce the Indenture, the Securities or the Guarantees
except as provided in the Indenture. Subject to certain limitations, Holders of
a majority in aggregate principal amount of the then outstanding Securities may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest.
17. Trustee Dealings with Company. The Trustee under the Indenture, in its
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individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company, any Guarantor, any of their Subsidiaries or
any of their respective Affiliates, and may otherwise deal with such Persons as
if it were not the Trustee.
18. No Recourse Against Others. No partner, incorporator, direct or
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indirect stockholder, partner, director, officer or employee, as such, past,
present or future, of the Company or any Guarantor, or any successor entity,
shall have any personal liability in respect of the obligations of the Company
and the Guarantors under the Securities or the Indenture by reason of his, her
or its status as such partner, incorporator, stockholder, director, officer or
employee. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for
the issuance of the Securities.
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19. Authentication. This Security shall not be valid until the Trustee or
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authenticating agent signs the certificate of authentication on the other side
of this Security.
20. Abbreviations and Defined Terms. Customary abbreviations may be used
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in the name of a Holder of a Security or an assignee, such as: TEN COM (=
tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
21. CUSIP Numbers. Pursuant to a recommendation promulgated by the
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Committee on Uniform Security Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Securities as a convenience to the Holders of
the Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed hereon.
22. Additional Rights of Holders of Transfer Restricted Securities. In
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addition to the rights provided to Holders of Securities under the Indenture,
Holders of Securities shall have all the rights set forth in the Registration
Rights Agreement.
23. Governing Law. THE INDENTURE, THE GUARANTEES AND THE SECURITIES SHALL
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BE CONSTRUED, INTERPRETED AND THE RIGHTS OF THE PARTIES THERETO DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS EXCEPT SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B).
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[FORM OF ASSIGNMENT]
I or we assign this Security to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
________________________________________________________________________________
(Please insert Social Security or other identifying number of assignee)
and irrevocably appoint _______________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated:_______________ Signed:_________________________________________________
________________________________________________________________________________
(Sign exactly as name appears on the other side of this Security)
Signature Guarantee*
__________________
* NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized signature Guarantee Programs: (i)
The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion
Program (SEMP); or (iv) in such other guarantee program acceptable to the
Trustee.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.14 or Article X of the Indenture, check the appropriate
box: TM Section 4.14 TM Article X.
If you want to elect to have only part of this Security purchased by the
Company pursuant to Section 4.14 or Article X of the Indenture, as the case may
be, state the amount you want to be purchased: $________.
Date:________________ Signature:__________________________________________
(Sign exactly as your name appears on the
other side of this Security)
Signature Guarantee**
__________________
** NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized signature Guarantee Programs: (i)
The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion
Program (SEMP); or (iv) in such other guarantee program acceptable to the
Trustee.
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SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES
The following exchanges of a part of this Global Security for Definitive
Securities have been made:
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized officer
Principal Amount Principal Amount Security following of Trustee or
Date of of this Global of this Global such decrease (or Securities
Exchange Security Security increase) Custodian
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