EXHIBIT 4.14
SH3347
Dated: 23rd March 1990
(1) ASM PACIFIC TECHNOLOGY LIMITED
(2) ADVANCED SEMICONDUCTOR MATERIALS ASIA LIMITED
(3) ASM ASSEMBLY AUTOMATION LIMITED
(4) ADVANCED SEMICONDUCTOR MATERIALS (OVERSEAS) LIMITED
(5) ASM ASSEMBLY MATERIALS LIMITED
(6) A.H. DEL PRADO
(7) LAM SEE PONG, PATRICK
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TRUST DEED AND RULES
of
THE ASM PACIFIC TECHNOLOGY LIMITED
EMPLOYEE SHARE INCENTIVE SCHEME
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HERBERT SMITH
17/F Edinburgh Tower
15 Queen's Road Central
Hong Kong
CONTENTS
PAGE
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1. Definitions 1
2. Compliance with the Scheme 1
3. Group Scheme 3
4. Acquisition of Shares 4
5. Trustees' Powers of Delegation 4
6. Administration 5
7. Trustees' Protections 5
8. Appointment, Removal and Retirement of Trustees 7
9. Alterations to the Scheme 8
10. Governing Law 8
SCHEDULES
1. The Rules:
1. Definitions 9
2. Funding of the Scheme and Provisional Allocation of Funds 13
3. Acquisition of Shares 15
4. Limitations 20
5. Obligations of the Company 20
6. Notices 21
7. Disputes 22
8. Termination of Scheme 22
9. Rights in respect of the Scheme 23
10. Alterations 23
2. Supplemental Trust Deed 24
THIS DEED is made the 23rd day of March, 1990.
BETWEEN:
(1) ASM PACIFIC TECHNOLOGY LIMITED whose registered office is at Caledonian
House, Grand Cayman, Cayman Islands, British West Indies ("the Company");
(2) ADVANCED SEMICONDUCTOR MATERIALS ASIA LIMITED, whose registered office is
at 6th floor, Watson Centre, 16-22 Kung Yip Street, Kwai Chung, Hong Kong;
(3) ASM ASSEMBLY AUTOMATION LIMITED, whose registered office is at 20th floor,
Watson Centre aforesaid;
(4) ADVANCED SEMICONDUCTOR MATERIALS ASIA LIMITED whose registered office is
at 6th floor, Watson Centre aforesaid;
(5) ASM ASSEMBLY MATERIALS LIMITED whose registered office is at 585-609
Castle Peak Road, 15th and 16th floors, Wo Kee Hong Building, Kwai Chung,
New Territories, Hong Kong; (parties (2) to (5) above inclusive being the
"Four Subsidiaries");
(6) A.H. DEL PRADO of Jan Steenlan 9,3723 BS Bilthoven, the Netherlands; and
(7) LAM SEE PONG, PATRICK of Princess Terrace, 11th floor, Block A, 21 Man Fuk
Road, Kowloon, Hong Kong;
(parties (6) and (7) above inclusive being the "First Trustees").
WHEREAS:
(A) The Company was incorporated in the Cayman Islands on 21st November 1988
as an exempted company. It has an authorized share capital of
HB$50,000,000 (divided into 500,000,000 shares of HB$0.10 each) of which
360,000,000 have been issued and are fully paid up.
(B) The Company and the Four Subsidiaries carry on the business of
manufacturing semiconductors and machinery used to manufacture
semiconductors.
(C) The Company and the Four Subsidiaries wish to establish a share incentive
scheme for the provision by the Company and other Participating Companies
(including the Four Subsidiaries) of funds for the subscription or
purchase by the Trustees of Shares.
(D) The First Trustees have agreed to be Trustees of the Scheme.
NOW THIS DEED WITNESSETH as follows:
1. Definitions
1.1 Words and expressions defined in the rules set out in Schedule 1 to this
Deed (the "Rules") shall, unless the context otherwise requires, have the
same meanings in this Deed, including the recitals hereto.
1.2 References to any statutory provisions are to those provisions as amended
or re-enacted from time to time and, unless the context otherwise
requires, words in the singular include the plural (and vice versa) and
words importing any gender include all genders.
2. Compliance with the Scheme
2.1 Each Participating Company hereby covenants with the Trustees to pay to
the Trustees, in accordance with and subject to the provisions of the
Scheme, the amounts due from it in accordance with the Rules for the
purpose of the subscription and purchase by the Trustees in the names of
Designated Employees, of Shares, together with any other amounts required
to cover any costs, charges and expenses incurred in any such purchase or
subscription and any other expenses and charges incurred by the Trustees
in the establishment, administration and determination of the Scheme.
2.2 Subject as hereinafter provided, the Trustees hereby covenant with each
Participating Company to apply the monies received in accordance with the
Rules in the subscription for and/or purchase of Shares in the names of
Designated Employees and in discharge of such costs charges and expenses
as are referred to in sub-clause 2.1.
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3. Group Scheme
3.1 The Scheme may, with the consent of the Board and if necessary after
notification to the Stock Exchange, be extended to any Subsidiary not a
party to this Deed by the adherence of such Subsidiary to the provisions
of the Scheme by deed in the form set out in Schedule 2 to this Deed, with
such amendments as the Trustees may prescribe, and thereupon the
provisions of the Scheme and of this Deed shall apply to that Subsidiary
as though it were a party to this Deed.
3.2 The Scheme shall cease to extend to any Participating Company, other than
the Company, at any time when:
3.2.1 that Participating Company ceases to be a Subsidiary; or
3.2.2 a notice (which has not subsequently been cancelled) is served by
the Company upon the Trustees that the Scheme shall cease to apply
to that Participating Company.
3.3 Each Participating Company hereby covenants with the Trustees that it will
provide the Trustees with such information as the Trustees may require
from it for the purposes of administration and determination of the
Scheme.
3.4 If and so long as the Scheme is extended to any Subsidiary, the powers and
discretions exercisable by that Subsidiary in relation to the Scheme shall
be exercisable by resolution of the board of directors or a duly appointed
committee of such board, and a minute of any resolution thereof signed by
the secretary or a director of that Subsidiary shall be sufficient
authority for the Trustees to act.
4. Acquisition of Shares
Shares may be acquired under the Scheme by way of subscription and/or
purchase provided that any sums paid by Participating Companies to the
Trustees for the acquisition of Shares shall, if not so applied, be used
to cover the Trustees' incidental costs and expenses or be repaid to the
relevant Participating Companies in accordance with the Rules.
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5. Trustees' Powers of Delegation
5.1 The Trustees in the exercise of their discretions and the performance of
their duties hereunder, may employ and pay a registrar, solicitor, broker,
actuary, accountant, banker or other adviser, and may appoint any such
person as their agent to transact all or any business, and may act on the
advice or opinion of any solicitor, broker, actuary, accountant or other
professional person, and shall not be responsible for anything done or
omitted or suffered in good faith in reliance on such advice or opinion.
5.2 The Trustees may execute or sign, and (if and so long as there is more
than one Trustee) may authorize the execution or signature by any one of
their number as their agent (and any corporate trustee may similarly
authorize any of its directors, officers or employees on its behalf to
effect the execution or signature) of, any deeds, documents, cheques or
other instruments by the impression of any signature on behalf of, or as
witness of any sealing by, the Trustees.
5.3 The Trustees may at any time cause any part of the funds held by them
pursuant to the Scheme to be deposited for safekeeping with any Trustee or
any other person on behalf of the Trustees and may pay any expenses in
connection therewith.
6. Administration
6.1 Subject to and in accordance with the provisions of this Deed and the
Rules and subject to the approval of the Company, the Trustees may make
such regulations as they consider appropriate relating to the
administration of the Scheme.
6.2 If and so long as there is more than one Trustee, the Trustees shall meet
together as may be necessary for the administration of the Scheme, and all
decisions taken by a majority for as a result of the casting vote of any
chairman appointed by the Trustees present at the meeting) of the Trustees
present at any meeting of the Trustees of which notice has been given to
those of them who are in Hong Kong (provided at least two Trustees shall
be present at every meeting) shall be as effective for all purposes as if
those decisions had been unanimous decisions of all the trustees. A
written resolution signed by all the
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Trustees arrived at without any meeting shall be effective for all
purposes. Nothing herein shall preclude a corporate Trustee acting on its
own.
7. Trustees' Protections
7.1 The Participating Companies shall pay to or reimburse the Trustees upon
demand all costs, charges and expenses reasonably incurred by them in the
course of the administration and determination of the Scheme and shall
keep the Trustees, their successors in title and their estates and effects
fully and effectively indemnified and saved harmless from and against all
actions, claims, losses, demands, proceedings, charges, expenses, costs,
damages, taxes, duties and any other liabilities arising out of anything
done or caused to be done by them or suffered or incurred by them in the
exercise or purported exercise of the powers and discretions vested in
them by this Deed or the Rules or otherwise howsoever arising out of, or
in connection with, the preparation, administration, operation or
termination of the Scheme (but so that no Trustee shall be indemnified or
exonerated in respect of any negligence, fraud or willful default on his
part) and in addition the Trustees shall have the benefit of all
indemnities conferred upon trustees generally by law and by the Trustee
Ordinance.
7.2 A person shall not be disqualified from acting as a Trustee or exercising
any power vested in the Trustees by reason of his having any interest,
whether direct or indirect, in any Participating Company or by reason of
his being eligible to benefit, personally benefiting or having benefited
under the Scheme and such person shall not be liable to account to any
party for any profit derived from the acquisition by him of Shares under
the Scheme.
7.3 Any person acting as a Trustee in the course of any profession or business
carried on by him may charge and be paid such reasonable remuneration,
charges or disbursements whether in connection with the Scheme or
otherwise as shall from time to time be agreed between him and the
Company.
7.4 Any Trustee being a banker may act as a banker to the Trustees and any
Trustee being a subsidiary or an associated company of a banker may employ
such banker as banker to
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the Trustees and in neither case shall such banker or the Trustees be
liable to account for any profits or advantages so obtained.
7.5 No Trustee (nor any director or officer of a body corporate or a trust
corporation acting as a Trustee) shall be precluded from acquiring,
holding or dealing with (on his own account) any debentures, debenture
stock, shares or securities whatsoever of the Company or any Subsidiary or
any other company in the shares of which the Company or any Subsidiary may
be interested, nor from entering into any contract or other transaction
with the Company or any Subsidiary or any such other company, nor from
being interested in any such contract or transaction, nor shall he or it
be in any way liable to account to the Company or any Subsidiary for any
profits made, fees, commissions, shares of brokerage, discounts allowed or
advantages obtained by him or it from, or in connection with, such
acquisition, holding, dealing, contract or transaction whether or not in
connection with his or its duties hereunder.
7.6 The Trustees shall be entitled in the absence of manifest error to rely
without further enquiry on information supplied to them by the
Participating Companies for the purposes of the Scheme and shall also be
entitled to rely, in the absence of manifest error, on any direction,
notice or document purported by any Participating Company to be given or
executed by or with the authority of the Company, as having been so given
or executed.
7.7 The Trustees may, but shall not be obliged, to invest any funds held by
them pursuant to the Scheme pending application of such funds pursuant to
the Rules. All funds so invested shall be invested in accordance with the
provisions of the Trustee Ordinance and the Trustees shall incur no
liability to any party in respect of any losses incurred as a result of
investments authorized by this clause.
8. Appointment, Removal and Retirement of Trustees
8.1 The Company may at any time by writing under hand of a person duly
authorized by a resolution of the Board:
8.1.1 appoint a new Trustee, including a corporate Trustee; and
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8.1.2 remove a Trustee from office (but not so as to leave in office less
than two Trustees, unless a corporate Trustee), without assigning
any reason therefore and such removal shall (in the absence of any
other date specified in the notice) take place forthwith.
Such powers of appointment and removal shall be vested in the Trustees in
the event that the Company ceases to exist.
8.2 A Trustee may retire by giving to the Company written notice of his or its
desire to retire and such notice shall take effect at the expiry of three
months (or such other period as may be agreed with the Company) from the
date of such notice. The Trustee so retiring shall not be obliged to give
any reason for, and shall not be responsible for any costs occasioned by,
such retirement but shall execute all such documents and do all such
things as may be necessary to give proper effect to such retirement.
9. Alterations to the Scheme
The Directors may at any time, with the concurrence of the Trustees and
(for so long as the Shares remain listed on the Stock Exchange) the Stock
Exchange, by deed supplemental hereto alter any of the provisions of this
Deed in such manner as may be thought fit, and the provisions of any such
supplemental deed shall be binding on all Participating Companies and
Designated Employees provided that no such purported alteration shall be
effective until (if it involves directly or indirectly some alteration to
the Rules for which a resolution of the Company in general meeting is
required under the Rules) it shall have been so approved by a resolution
passed by the members of the Company in general meeting.
10. Governing Law
This Deed shall be governed by and construed in accordance with the laws
of Hong Kong.
IN WITNESS whereof these presents have been entered into the day and year first
above written.
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SCHEDULE 1
THE RULES OF THE ASM PACIFIC TECHNOLOGY LIMITED
EMPLOYEE PROFIT SHARING SCHEME
1. Definitions
1.1 In these Rules, the following words and expressions shall, where the
context so admits, bear the meanings set forth below:
"Allocation Date" a date upon which funds are allocated to
Designated Employees pursuant to Rule 2.1.3;
"Auditors" the auditors of the Company for the time
being;
"the Board" the board of directors for the time being of
the Company, or any duly authorized committee
thereof;
"business day" a day, other than Saturday, on which banks
are customarily open for business in Hong
Kong;
"the Company" ASM Pacific Technology Limited;
"Continuous Employment" the meaning given to that expression by the
first schedule to the Employment Ordinance,
provided that any period of absence due to
pregnancy or confinement shall be taken to be
part of an employee's period of Continuous
Employment with any one or more Participating
Companies;
"the Deed" the Trust Deed as amended from time to time
constituting (together with these Rules) the
Scheme;
"Designated Employee" means an Eligible Employee designated by the
Board pursuant to Rule 2.1.3 as a person for
whose benefit funds paid to the Trustees
pursuant to the Scheme shall be held;
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"Eligible Employee" any individual who on any particular
Allocation Date;
(a) is an executive or non-executive
director or an employee of a
Participating Company; and
(b) in the case of a director who is not an
employee, has held that office with that
or any one or more of the Participating
Companies for not less than one year (or
such lesser period as the Board may
specify in accordance with the Scheme),
or, in the case of an employee, has had
not less than one year's Continuous
Employment (or such lesser period as the
Board may specify in accordance with the
Scheme) with that or any one or more of
the Participating Companies;
"Group" the group of companies comprising the Company
and the Relevant Subsidiaries;
"Participating Company" subject to clause 3.2 of the Deed, each of
the Company and the Relevant Subsidiaries;
"Payment Date" in respect of each Qualification Period, the
business day specified by the Trustees by
notice pursuant to Rule 2.2 as the day by
which a Participating Company is required to
have made payment to the Trustees for the
benefit of those persons who were Eligible
Employees of that Participating Company on
the Allocation Date with which such
Qualification Period began and who on that
date became Designated Employees pursuant to
Rule 2.1.3;
"Public" all holders of Shares other than:
(a) the directors of the Company;
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(b) substantial shareholders of the Company;
(c) the wife or husband of a director or
substantial shareholder of the Company;
(d) any son, daughter, step son or step
daughter under the age of 21 years of a
director or substantial shareholder of
the Company, or of the wife or husband of
a director or substantial shareholder of
the Company;
(e) the trustees of any trust, acting in
their capacity as such trustees, of which
any person mentioned in paragraphs (a) to
(d) of this definition, is a beneficiary
or, in the case of a discretionary trust,
is a discretionary object; and
(f) any company of which a director or
substantial shareholder of the Company is
a substantial shareholder and the holding
company or subsidiary of the company of
which a director or substantial
shareholder of the Company is a
substantial shareholder;
"Qualification Period" in respect of all persons who are Eligible
Employees on any Allocation Date and who on
that date have become Designated Employees
pursuant to Rule 2.1.3, a period of not less
than one year or such period as may from
time to time be substituted therefor by the
Board in accordance with the Scheme or such
period as may be substituted therefor by the
operation of Rule 3.2;
"Relevant Subsidiaries" Advanced Semiconductor Materials Asia
Limited, ASM Assembly Automation Limited,
ASM Assembly Materials Limited, Advanced
Semiconductor Materials
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(Overseas) Limited and any other Subsidiary
which may hereafter execute a deed of
adherence in the form set
out in Schedule 2 to the Deed (with such
modifications, if any, as may be agreed
between the Company and the Trustees);
"the Scheme" the ASM Pacific Technology Limited
Employee Share Incentive Scheme (as
constituted by the Deed and these Rules) in
its present form or as from time to time
amended in accordance with the provisions
hereof;
"Share" a fully paid share of HK$0.10 in the capital
of the Company or such other description and
denomination of share in the capital of the
Company as represents such share following any
reorganization of the capital of the Company;
"Stock Exchange" The Stock Exchange of Hong Kong Limited;
"Subsidiary" a subsidiary (as defined in section 2 of the
Companies Ordinance) of the Company;
"substantial shareholder" in relation to a company means a person
entitled to exercise, or control the exercise,
of 10 per cent or more of the voting power at
any general meeting of the said company;
"Trustees" the trustee or trustees of the Scheme from
time to time and for the time being;
"year" a period of one year ending on the 31st
December or such other period ending on such
other date as the Board may from time to
time determine, being in either case the
date of which the audited (consolidated)
accounts of the Company and the Group are
made up.
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1.2 Reference to any statutory provisions are to those provisions as amended
or re-enacted from time to time and, unless the context otherwise
requires, words in the singular include the plural (and vice versa) and
words importing any gender include all genders.
2. Funding of the Scheme and Provisional Allocation of Funds
2.1 Within 40 days of the Company announcing, during a year in respect of
which the Board shall have resolved that the Scheme shall operate, its
final results in respect of the previous year, the Board shall determine:
2.1.1 what percentage of the consolidated profits (before tax and
extraordinary items) of the Group in respect of the said previous
year shall be paid to the Trustees to be held by them upon the terms
of the Scheme;
2.1.2 the aggregate amount of the funds to be paid to the Trustees
pursuant to Rule 2.1.1 to be allocated to Designated Employees of
each Participating Company and the consequent payment which each
Participating Company must make to the Trustees; and
2.1.3 the Eligible Employees for whose benefit such funds shall be held,
and the amount to be allocated to each such Designated Employee.
2.2 Immediately following determination of the matters set out in Rule 2.1,
the Company shall notify:
2.2.1 each Participating Company in writing of the Allocation Date, the
length of the Qualification Period beginning on that date and the
aggregate amount of funds allocated to Designated Employees of each
Participating Company and shall request each Participating Company
to pay the amount allocated to its Designated Employees to the
Trustees no later than the fifth business day following the date of
such notification;
2.2.2 each Designated Employee to whom funds have been allocated pursuant
to Rule 2.1.3, either by sending to him, or by making available to
him at his place of work, a letter of notification, setting out the
fact that funds have been so allocated,
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the amount of those funds, the terms upon which they are to be held
by the Trustees, the Allocation Date, the length of the
Qualification Period applicable to him and any other matters which
the Company deems necessary or desirable; and
2.2.3 the Trustees of the determinations of the Board pursuant to Rules
2.1.2 and 2.1.3.
2.3 Each Participating Company shall on the due date pay to the Trustees in
cash the amount required to be paid by it pursuant to Rule 2.2.1.
2.4 All funds at any time paid to the Trustees by Participating Companies
pursuant to Rule 2.3 shall be held upon trust and applied by the Trustees
in accordance with the provisions of the Deed and these Rules for the
benefit of Designated Employees in accordance with their respective
interests therein.
2.5 The Trustees shall at all times maintain accounts and records which
clearly identify:
(a) every payment of funds to the Trustees by a Participating Company
pursuant to Rule 2.2.1;
(b) the Allocation Date and Qualification Period referable to each
such payment of funds;
(c) the Designated Employees for whose benefit each such payment has
been made and the amount of such payment allocated to each of them;
and
(d) the date(s) upon which each such payment is applied in the
subscription and/or purchase of Shares pursuant to the Scheme.
so that each such payment shall be treated as a discrete sub-fund of the
monies for the time being held on trust by the Trustees pursuant to the
Scheme and the amount thereof, and the identities and interests of the
Designated Employees entitled thereto, are at all times capable of being
readily ascertained.
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3. Acquisition of Shares
3.1 Subject to the provisions of Rules 3.2 and 3.9 and 4, as soon as
practicable following the expiry of each Qualification Period, the
Trustees shall apply the funds paid to them by Participating Companies on
the Payment Date for that Qualification Period:
3.1.1 in subscribing for Shares for cash at par on behalf of those
Eligible Employees who became Designated Employees with respect to
such funds on the Allocation Date with which that Qualification
Period began; and/or
3.1.2 in purchasing Shares at market price on the Stock Exchange on behalf
of those Eligible Employees who became Designated Employees with
respect to such funds on that Allocation Date; and
3.1.3 in paying all costs, charges and expenses, including brokers fees
and stamp duty ancillary to such subscription and/or purchase;
provided that if any such Designated Employee:
3.1.4 ceases to be an executive or non-executive director or an employee
of the Participating Company or Companies of which he is an
executive or non-executive director or by which he is employed at
any time during that Qualification Period other than:
(i) in circumstances where the Designated Employee is or is to
be re-employed by, or appointed an executive or
non-executive director of, another Participating Company; or
(ii) by death; or
(iii) by retirement at normal retirement age; or
(iv) by retirement for reasons of ill-health or physical
incapacity; or
3.1.5 is, at the expiry of that Qualification Period, under notice to
terminate his tenure of office and/or employment with such Company
or Companies, whether such notice is given by the relevant
Participating Company or Companies or the Designated Employee;
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any such funds allocated to him on that Allocation Date shall not be
so applied but shall be applied by the Trustees in discharging the
liabilities under Rule 3.6 of the Participating Company or Companies
of which that Designated Employee was an executive or non-executive
director or by which he was employed on that Allocation Date.
3.2 In the event of the Company or any Subsidiary selling or otherwise
disposing of the whole or any part of its shareholding in any
Participating Company so that the said Participating Company ceases to be
a Participating Company pursuant to clause 3.2.1 of the Deed, all
Qualification Periods which are unexpired as at the date of completion of
such sale or disposal shall, for the purposes of Rule 3.1, be deemed to
expire on the said completion date in respect of the funds paid by the
said Participating Company to the Trustees for the benefit of its
Designated Employees, so that the said Designated Employees shall not lose
the benefit of funds paid on their behalf to the Trustees, but shall be
entitled to benefit therefrom forthwith pursuant to the terms of the
Scheme.
3.3 Subject to the limitations in Rule 4, the Trustees may decide in their
absolute discretion whether to apply the funds paid to them pursuant to
Rule 2.3 (after deduction of such amounts required for the payment of
costs pursuant to Rule 3.7.2) in subscribing for, or in purchasing,
Shares, and if Shares are to be both purchased and subscribed for, the
Trustees shall determine the relative amounts to be so applied.
3.4 In the event that the Trustees choose to apply any part of the available
funds in subscribing for Shares:
3.4.1 the Trustees shall notify the Board in writing as soon as possible
of the number of Shares to be subscribed for and the names of the
Designated Employees to whom such Shares are to be allotted;
3.4.2 within 5 business days of receipt of such notification the Board
shall meet to allot the relevant number of Shares to such Designated
Employees subject only to payment of the subscription price therefor
by the Trustees; and
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3.4.3 share certificates in respect of such Shares shall be issued in the
names of the relevant Designated Employees and dispatched to the
Trustees for distribution to those Designated Employees.
3.5 In the event that the Trustees choose to apply any part of the available
funds in purchasing Shares on the Stock Exchange, the Trustees shall
ensure that such Shares are purchased and registered in the names of the
relevant Designated Employees.
3.6 If on a subscription or purchase of Shares by the Trustees, the funds held
by the Trustees on behalf of any one Designated Employee are found to be
insufficient (after deduction of such sum as the Trustees deem appropriate
for the payment of costs and expenses relating to the purchase of or
subscription for Shares on behalf of that Eligible Employee) to subscribe
or purchase a whole number of Shares, the number of Shares to be
subscribed for or purchased on behalf of that Designated Employee shall be
rounded down to the nearest whole Share which may be subscribed or
purchased by the available funds, and the balance of such funds shall be
reimbursed forthwith to the Participating Company by which that Designated
Employee was employed on the Allocation Date on which he became a
Designated Employee (and, if more than one, to those Participating
Companies, pro rata to the payments made by each such Company on behalf of
the relevant Designated Employee on the relevant Payment Date).
3.7 Without prejudice to the provisions of the Deed, all costs from time to
time incurred by the Trustees in subscribing and purchasing Shares
pursuant to the Scheme and in administering the Scheme (including without
limitation all brokerage, commissions and stamp duty) shall be discharged
by the Trustees from:
3.7.1 those unapplied funds, if any, available pursuant to Rule 3.1 (any
surplus of such funds being reimbursed forthwith to the
Participating Company in question) and then if necessary;
3.7.2 by apportioning the remaining costs amongst Designated Employees in
proportion to their respective interests in any funds of which the
Trustees shall stand possessed at the relevant time pending their
application pursuant to the Scheme
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and deducting such apportioned amount from the sum allocated to each
Designated Employee so interested;
and if any costs still remain to be discharged after applying sub-clause
3.7.1 and 3.7.2, the amount of such costs shall be borne by the
Participating Companies who last made payments to the Trustees pursuant to
Rule 2.2.1 in the proportions which their respective payments bore to the
aggregate of such payments.
3.8 All Shares subscribed for pursuant to Rule 3.1.1 shall carry the same
rights as respects voting, dividends, transfer and all other rights,
including those arising on a liquidation, as all other Shares in issue at
the time of such subscription.
3.9 No Shares shall be subscribed for or purchased pursuant to the Scheme
at any time:
3.9.1 when less than 25% of the issued share capital of the Company is in
the hands of the Public and such subscription or purchase would
result in the percentage of the issued share capital of the Company
in the hands of the public being further reduced; or
3.9.2 when 25% or more of the issued share capital of the Company is in
the hands of the Public and such subscription or purchase would
result in the percentage of the issued share capital of the Company
in the hands of the Public being reduced to below 25%;
and in the event of the subscription or purchase of Shares being
prevented by operation of this Rule, the Company shall procure that
all steps as are reasonably practicable are promptly taken so as to
enable the Scheme to operate free of the restrictions imposed by
this Rule.
4. Limitations
4.1 The maximum aggregate number of Shares which may be acquired by the
Trustees pursuant to the Scheme shall not exceed 5 percent of the issued
share capital of the Company from time to time, excluding any Shares
acquired pursuant to the Scheme, provided that not more than 2 per cent of
the number of Shares in issue at the
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commencement of any year (excluding any Shares acquired then under the
Scheme) may be acquired pursuant to the Scheme in that year.
4.2 In no circumstances may any Designated Employee acquire pursuant to the
Scheme more than 15 per cent of the aggregate number of Shares acquired
thereunder for the benefit of all Designated Employees.
4.3 The limits in this Rule 4 on the number of Shares which may be acquired
under the Scheme shall be adjusted in such manner as the Auditors shall
determine in writing to be, in their opinion, fair and reasonable
following any capitalization issue, sub-division, consolidation or
reduction of the share capital of the Company and in respect of any
discount element in any rights issue undertaken by the Company to the
intent that the said limits on the number of Shares which may be so
acquired shall take account of any such event.
5. Obligations of the Company
5.1 The Company shall:
5.1.1 ensure that it has sufficient authorized but unissued share capital
to be able to allot the maximum number of Shares for which the
Trustees may subscribe in any year;
5.1.2 pay all capital duty payable on increases of the Company's
authorized capital made to ensure compliance with Rule 5.1.1;
5.1.3 ensure that the Board is at all times authorized to allot the
maximum number of Shares for which the Trustees may subscribe in any
year;
5.1.4 allot and issue all Shares acquired to be allotted and issued
pursuant to the Scheme at any time on terms that they rank pari
passu in all respects with all other Shares in issue at that time
save for the right to participate in any dividends or other
distributions declared made or paid on a date, or by reference to a
record date, prior to such allotment and issue;
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5.1.5 promptly apply for all Shares allotted pursuant to the Scheme to be
listed and dealt in on the Stock Exchange.
6. Notices
6.1 Any notice which any party hereto is required or may desire to give to any
other party hereto or to any Designated Employee pursuant to this Scheme
shall be sufficiently given if delivered to that party or Designated
Employee personally or sent through the post pre-paid and addressed, in
the case of a party hereto, to that party at his address set out in the
Deed or at such other address notified by that party to all other parties
hereto for that purpose, and, in the case of a Designated Employee,
addressed to that Designated Employee at his address last known to the
party giving the notice (including any address supplied by the relevant
Participating Company as being his address), or sent through the Company's
internal postal service, and if so sent by post shall be deemed to have
been duly given on the day following the date of posting and if sent
through the Company's internal postal service shall be deemed to have been
duly given 72 hours after the date of posting. Any document so sent by
post to any party who is an individual or to a Designated Employee shall
be deemed to have been duly delivered notwithstanding that he is then
deceased (and whether or not the party giving the notice has notice of his
death), except where his personal representatives have established their
title to the satisfaction of the party giving the notice and have supplied
an address to which documents are to be sent.
7. Disputes
The decision of the Board in any dispute relating to any Eligible or
Designated Employee or any other matter under this Scheme shall be final
and conclusive subject to the certification of the Auditors having been
obtained when so required.
8. Termination of the Scheme
8.1 The Company in general meeting or the Board may at any time resolve to
terminate this Scheme, in which event no further funds shall be paid to
the Trustees by Participating
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Companies, but the provisions of this Scheme in relation to funds already
held by the Trustees shall continue in full force and effect and the
Scheme may accordingly be operated to enable such funds to be applied in
accordance with its terms.
8.2 The Scheme shall in any event terminate on the 10th anniversary of the
date of the Deed whereupon the Trustees shall wind-up the Scheme in
accordance with Rule 8.3 and, save for rights accrued prior to that date,
the Deed shall thereupon cease to have any effect.
8.3 Upon the termination of the Scheme the Trustees shall (except to the
extent the Trustees require monies to meet the expenses of determining the
Scheme) thereupon account and pay to Participating Companies (so far as
practicable) any monies held by them in the same proportion as they were
provided.
9. Rights in respect of the Scheme
In no circumstances shall any Eligible or Designated Employee or any
person who has ceased to be an Eligible or Designated Employee for any
reason whatever or in respect of whom notice to terminate his tenure of
office and/or employment has been given (whether by him or a Participating
Company) be entitled to claim ___ against any Participating Company or the
Trustees any compensation for or in respect of any loss he may suffer by
reason of the operation of the terms of this Scheme.
10. Alterations
10.1 These Rules may at any time be altered by a resolution of the Board (with
the concurrence of the Trustees and, where appropriate, the Stock
Exchange) and such alterations shall be binding on all Participating
Companies provided that no such purported alteration shall be effective
except with the prior sanction of the Company in general meeting if the
alteration would have the effect of extending the classes of Eligible or
Designated Employees (subject to the provisions of Rule 10.2), or of
altering to the advantage of Eligible or Designated Employees (present or
future) any of the provisions of Rules 3.8, 8.2 or 8.3 or any of the
provisions of this Scheme which relate to the limitations on the number of
Shares to be acquired hereunder, including the provisions
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relating to adjustments to those figures, or to increasing the maximum
annual entitlement of any individual Employee to any funds paid to the
Trustees pursuant to the Scheme.
10.2 For the avoidance of doubt, the Board shall be entitled, by resolution of
the Board alone, to specify for the purpose of paragraph (b) of the
definition of "Eligible Employee" shorter periods than those contained in
such paragraph for the purposes of the first and last occasions on which
the Scheme is operated.
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SCHEDULE 2
This Deed is made this day of 198[ ]
BETWEEN:
(1) ASM PACIFIC TECHNOLOGY LIMITED (the "Company");
(2) ADVANCED SEMICONDUCTOR MATERIALS ASIA LIMITED;
(3) ASM ASSEMBLY AUTOMATION LIMITED;
(4) ADVANCED SEMICONDUCTOR MATERIALS (OVERSEAS) LIMITED;
(5) ASM ASSEMBLY MATERIALS LIMITED
(parties (2) to (5) above inclusive being the "Subsidiaries");
(6) A.H. DEL PRADO;
(7) LAM SEE PON, PATRICK;
(parties (6) and (7) above inclusive being the "Trustees"); and
(8) [ ] (the "New Subsidiary");
and is supplemental to a Trust Deed executed by the Company, the Subsidiaries
and the Trustees on the [ ] day of [ ] 1989 (the "Scheme").
WHEREAS:
A. The Company was incorporated on the 21st day of November 1988 and on
the 5th day of December 1988 each of the Subsidiaries became a
subsidiary of the Company;
B. The New Subsidiary has been invited and wishes to become a Participating
Company in order that its Eligible Employees may participate in the Scheme
as Designated Employees.
NOW THIS DEED WITNESSETH as follows:
1. Terms defined in the Scheme bear the same meaning herein.
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2. The New Subsidiary agrees to become a Participating Company and to be
bound by the terms of the Scheme.
In witness whereof the parties hereto have set their hands and seals the day
first above written.
THE COMMON SEAL OF ASM PACIFIC )
TECHNOLOGY LIMITED was hereunto )
affixed in the presence of: )
Director: /s/ Arthur H. del Prado
Secretary: /s/ Patrick Lam See Pong
THE COMMON SEAL OF ADVANCED )
SEMICONDUCTOR MATERIALS ASIA )
LIMITED was hereunto affixed )
in the presence of: )
Director: /s/ Arthur H. del Prado
Secretary: /s/ Patrick Lam See Pong
THE COMMON SEAL OF ASM )
ASSEMBLY AUTOMATION )
LIMITED was hereunto affixed )
in the presence of: )
Director: /s/ Arthur H. del Prado
Secretary: /s/ Patrick Lam See Pong
THE COMMON SEAL OF ADVANCED )
SEMICONDUCTOR MATERIALS )
(OVERSEAS) LIMITED was hereunto )
affixed in the presence of: )
Director: /s/ Arthur H. del Prado
Secretary: /s/ Patrick Lam See Pong
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THE COMMON SEAL OF ASM )
ASSEMBLY MATERIALS LIMITED )
was hereunto affixed in the presence of: )
Director: /s/ Arthur H. del Prado
Secretary: /s/ Patrick Lam See Pong
SIGNED SEALED AND DELIVERED )
by the said A.H. DEL PRADO )
in the presence of: )
/s/ Chan Lo Kwan ) /s/ Arthur H. del Prado
SIGNED SEALED AND DELIVERED )
by the said LAM SEE PONG, PATRICK )
in the presence of: )
/s/ Chan Lo Kwan ) /s/ Patrick Lam See Pong
THE COMMON SEAL of [the )
New Subsidiary] )
was hereunto affixed in the presence of: )
Director:
Secretary:
THE COMMON SEAL of ASM PACIFIC )
TECHNOLOGY LIMITED was hereunto )
affixed in the presence of: )
Director: /s/ Arthur H. del Prado
Secretary: /s/ Patrick Lam See Pong
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THE COMMON SEAL of ADVANCED )
SEMICONDUCTOR MATERIALS ASIA )
was hereunto affixed in the presence of: )
Director: /s/ Arthur H. del Prado
Secretary: /s/ Patrick Lam See Pong
THE COMMON SEAL of ASM )
ASSEMBLY AUTOMATION LIMITED )
was hereunto affixed in the presence of: )
Director: /s/ Arthur H. del Prado
Secretary: /s/ Patrick Lam See Pong
THE COMMON SEAL of ADVANCED )
SEMICONDUCTOR MATERIALS )
(OVERSEAS) LIMITED was hereunto )
affixed in the presence of: )
Director: /s/ Arthur H. del Prado
Secretary: /s/ Patrick Lam See Pong
THE COMMON SEAL of ASM )
ASSEMBLY MATERIALS LIMITED )
was hereunto affixed in the presence of: )
Director: /s/ Arthur H. del Prado
Secretary: /s/ Patrick Lam See Pong
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SIGNED SEALED AND DELIVERED )
by the said A.H. DEL PRADO )
in the presence of: )
/s/ Chan Lo Kwan ) /s/ Arthur H. del Prado
SIGNED SEALED AND DELIVERED )
by the said LAM SEE PONG, PATRICK )
in the presence of: )
/s/ Chan Lo Kwan ) /s/ Patrick Lam See Pong
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