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Title: |
Share Sale and Purchase Agreement |
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Date: |
2004 |
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Preview shows 7KB of 149KB total |
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Price: |
$63 |
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ID: |
#1223877 |
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SHARE SALE AND PURCHASE AGREEMENT
-------------------------------------------------------------------------------
dated as of
February 3, 2004
among
NEC Electronics Corporation,
NEC Yamagata, Ltd.,
J&R Holding Ltd.,
and
Advanced Semiconductor Engineering, Inc.
<PAGE>
SHARE SALE AND PURCHASE AGREEMENT
THIS SHARE SALE AND PURCHASE AGREEMENT is made as of the 3rd day of February,
2004 among
NEC Yamagata, Ltd., a company established under the laws of Japan, having its
principal place of business at 1863 Iryuuda, Takahata-machi, Higashi
Okitama-gun, Yamagata, Japan, and a wholly-owned subsidiary of NECEL ("NECY");
NEC Electronics Corporation, a company established under the laws of Japan,
having its principal place of business at 1753, Shimonumabe, Nakahara-ku,
Kawasaki, Kanagawa, Japan ("NECEL", and together with NECY, the "Seller
Parties");
Advanced Semiconductor Engineering, Inc., a company established under the laws
of Taiwan, having its principal place of business at No. 26, Chin 3rd Road,
Nantze Export Processing Zone, Kaohsiung, Taiwan ("ASE"); and
J&R Holding Ltd., a company established under the laws of Bermuda, having its
principal place of business at Canon's Court, 22 Victoria Street, Hamilton HM
12, Bermuda, and a wholly-owned subsidiary of ASE (the "Buyer", and together
with ASE, the "Buyer Parties").
The Seller Parties and the Buyer Parties are also hereinafter referred to
collectively as the "Parties", and each of them individually as a "Party".
W I T N E S S T H
WHEREAS, NECY intends to, by way of company split (kaisha bunkatsu) under the
Commercial Code, establish the Company as a wholly-owned subsidiary and transfer
the Business to the Company on and subject to the terms of this Agreement; and
WHEREAS, NECY wishes to sell, and the Buyer wishes to acquire, the entire issued
shares in the Company on and subject to the terms of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained herein and for
other valuable consideration, the Parties agree as follows:
A G R E E M E N T
1. Definitions and Interpretation
1.1 Definitions
In this Agreement where the context admits:
"Adjustment Dispute Notice" shall have the meaning as specified in
Clause 5.1(b).
"Affiliate" of a specified Person means any Person that controls, is
controlled by or is under common control with such specified Person. For
purposes of this definition, "control" shall mean the possession
(directly or indirectly) of power to direct or cause the direction of
1
<PAGE>
management or policies of a Person, whether through ownership of
securities or other ownership interests, by Contract or otherwise.
"Approval" of a Person shall mean any consent, approval, authorization,
waiver, grant, concession, license, permit, exemption or order of,
registration, certificate, declaration or filing with, or report or
notice to, such Person.
"Benefit Plan" shall mean any plan, Contract, policy or procedure under
which any of the following benefits are provided to applicable employees:
health, welfare, unemployment benefits, bonus or other incentive
compensation, pensions, profit sharing, deferred compensation, stock
option or other equity compensation, retirement, medical, dental,
severance pay, lay off or reduction in force, change in control, sick
pay, vacation pay, salary continuation, retainer, leave of absence,
disability, educational assistance, service award, employee discount,
fringe benefit and similar plans, arrangements, policies or practices.
"Book Equity Value" shall have the meaning as specified in Clause 4.1.
"Business" means the semiconductor assembly and test operations of NECY
conducted at the Facilities, exclusive of those related to compound
semiconductor devices, and the assets and rights and Liabilities of NECY
in connection therewith (but excluding the Excluded Liabilities, for
which the Company shall have no Liability).
"Business Assets" shall mean all assets of NECY of every kind and nature
that are principally used in the conduct of the Business. Except for
those Business Assets otherwise agreed between the Parties in writing,
the Business Assets will be transferred to the Company pursuant to the
Company Split.
"Business Day" means any day except (a) Saturday or Sunday, or (b) any
other day on which commercial banks in Tokyo, Japan are closed for
ordinary banking business.
"Business Tax Returns" shall have the meaning as specified in Clause
19(a) of Schedule 8.2.
"Buyer Indemnified Party" shall have the meaning as specified in Clause
14.1.
"Buyer Party Warranties" means the representations and warranties of the
Buyer Parties as set forth in Schedule 8.3 and in the certificate of the
Buyer Parties referenced in Clause 6.1(d).
"Charter Documents" of any Person shall mean such Person's articles of
incorporation, by laws, certificate of formation or equivalent governing
or organizational documents.
"Claim Amount" shall have the meaning as specified in Clause 14.4.
"Company" means a Japanese corporation which will be established under
the Commercial Code as a wholly-owned subsidiary of NECY as a result of
the Company Split and which will consequently assume the Business from
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