EXHIBIT A
Share Purchase Agreement
This Agreement is made on this 19th day of May, 2001 by and between A.S.E.
Holding Limited, a company incorporated under the laws of Bermuda and having a
registered office at Xxxxx Xxxxx, 00 Xxxxx Xxxxxx, Xxxxxxxx XX 00, Xxxxxxx (xxx
"Buyer") and Xxxxx Xxxxx-Xxxx Xxxxx and Xxxxxxx Xxxx-Pen Xxxxx (each a "Seller",
collectively the "Sellers"), residents of the Republic of China ("ROC").
WHEREAS, the Sellers hold, in the aggregate, options exercisable for 2,480,000
shares of ASE Test Limited (the "Company"), a company incorporated under the
laws of Singapore, and intend to sell to the Buyer shares issued by the Company
arising from the Sellers' exercise of the aforesaid options;
WHEREAS, the Buyer agrees to purchase such shares from the Sellers.
NOW, THEREFORE, in consideration of the premises above and the covenants
contained hereinafter, the parties hereto agree as follows:
1. It is hereby acknowledged by the parties hereto that the Sellers hold, in
the aggregate, options (comprising options held by Xxxxx Xxxxx-Xxxx Xxxxx
exercisable for 1,640,000 shares and options held by Xxxxxxx Xxxx-Pen Xxxxx
exercisable for 840,000 shares (collectively, the "Options")) granted by
the Company in 1996 under which the Sellers are entitled to acquire
2,480,000 shares of the Company after the exercise of the Options and the
full payment of the exercise price thereof (US$3.50 per share).
2. The Buyer agrees to purchase from the Sellers and the Sellers agree to sell
to the Buyer 2,480,000 shares at the price of US$14.27 per share and the
aggregate purchase price of US$35,389,600 (the "Purchase Price").
3. The Buyer will, at the instruction of the Sellers, wire to a bank account
or accounts to be designated by the Company a portion of the Purchase Price
in the amount of US$8,680,000, representing the aggregate exercise price of
the Options. The Buyer will, at the instruction of the Sellers, wire to a
bank account or accounts to be designated by the Sellers the remainder of
the Purchase Price in the amount of US$26,709,600.
4. The Sellers represent and warrant to the Buyer as of the date hereof that:
a) Each Seller has good and valid title to the Options held by him, free
and clear of all liens, encumbrances, equities or claims, and,
assuming due exercise of the Options held by each Seller in accordance
with the terms of the agreement governing such Options and full
payment of the exercise price thereof, will have good and valid title
to the shares arising from such exercise of the Options, free and
clear of all liens, encumbrances, equities or claims.
b) This Agreement has been duly executed and delivered by each Seller and
constitutes a legal, valid and binding agreement of each Seller,
enforceable in accordance with its terms (subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles).
c) The execution, delivery and performance by each Seller of this
Agreement and the consummation of the transactions contemplated hereby
do not and will not (i) violate any applicable law, rule, regulation,
judgment, injunction, order or decree or any contractual restriction
binding on or affecting either Seller or any assets of either Seller,
except for any such violations which would not have a material adverse
effect on the ability of such Seller to perform his obligations
hereunder (a "Material Adverse Effect"), (ii) except as to matters
which would not have a Material Adverse Effect, require any consent or
other action by any individual, corporation, partnership, limited
liability company or other entity or organization (each, a "Person")
under, constitute a default under, or give rise to any right of
termination, cancellation or acceleration of any right or obligation
of either Seller or to a loss of any benefit to which either Seller is
entitled under any provision of any agreement or other instrument
binding upon such Seller; or (iii) result in the creation or
imposition of any material mortgage, lien, pledge, charge, security
interest or encumbrance on any asset of either Seller.
d) There is not pending or, to the knowledge of either Seller, threatened
against either Seller any action, suit or proceeding at law or in
equity or
before any court, tribunal, governmental body, agency or official or
any arbitrator (including without limitation any bankruptcy,
insolvency or similar proceeding) that is likely to affect the
legality, validity or enforceability against either Seller of this
Agreement or the ability of either Seller to perform his obligations
hereunder.
5. The Buyer represents and warrants to each Seller as of the date hereof
that:
a) The Buyer is a corporation duly incorporated, validly existing and in
good standing under the laws of Bermuda and has all corporate powers
and all material governmental licenses, authorizations, permits,
consents and approvals required to carry on its business as now
conducted.
b) The execution, delivery and performance by the Buyer of this Agreement
and the consummation of the transactions contemplated hereby are
within the corporate powers of the Buyer and have been duly authorized
by all necessary corporate action on the part of the Buyer.
c) This Agreement has been duly executed and delivered by the Buyer and
constitutes a legal, valid and binding agreement of the Buyer,
enforceable in accordance with its terms (subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles).
d) The execution, delivery and performance by the Buyer of this Agreement
and the consummation of the transactions contemplated hereby do not
and will not (i) violate the certificate of incorporation or bylaws of
the Buyer, (ii) violate any applicable law, rule, regulation,
judgment, injunction, order or decree applicable to the Buyer or any
of the Buyer's assets or any contractual restriction binding on or
affecting the Buyer or any of the Buyer's assets, (iii) require any
consent or other action by any Person under, constitute a default
under, or give rise to any right of termination, cancellation or
acceleration of any right or obligation of the Buyer or to a loss of
any benefit to which the Buyer is entitled under any provision of any
agreement or other instrument binding upon the Buyer or (iv) result in
the creation or imposition of any material mortgage, lien, pledge,
charge, security interest or encumbrance on any asset of the Buyer.
e) There is not pending or, to the Buyer's knowledge, threatened against
the Buyer any action, suit or proceeding at law or in equity or before
any court, tribunal, governmental body, agency or official or any
arbitrator (including without limitation any bankruptcy, insolvency or
similar proceeding) that is likely to affect the legality, validity or
enforceability against the Buyer of this Agreement.
6. The time and date of the closing of the transactions contemplated hereby
(the "Closing Date") shall be further agreed upon by the parties hereto; in
no event, however, shall the Closing Date be later than June 5, 2001.
7. The parties have complied with the applicable requirements of Regulation S
under the United States Securities Act of 1933, as amended.
8. This Agreement shall be governed by and construed in accordance with the
laws of the ROC.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered as of the date and year first written above.
THE BUYER: THE SELLERS:
A.S.E. Holding Limited Xxxxx Xxxxx-Xxxx Xxxxx
By: /s/ Xxxxxx Xxxx /s/ Xxxxx Xxxxx-Xxxx Xxxxx
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Name: Xxxxxx Xxxx
Title: Director
Xxxxxxx Xxxx-Pen Xxxxx
/s/ Xxxxxxx Xxxx-Pen Xxxxx
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