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EXHIBIT 1.1
ST Assembly Test Services Ltd
102,000,000 Ordinary Shares */
(S$0.25 par value)
directly or in the form of American Depositary Shares
Each American Depositary Share representing
the right to receive ten Ordinary Shares
U.S. Underwriting Agreement
New York, New York
January [27], 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇ Securities Corporation
As U.S. Representatives of the several
U.S. Underwriters,
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
ST Assembly Test Services Ltd, a company organized under the
laws of Singapore (the "Company"), proposes to sell to the several U.S.
Underwriters named in Schedule I hereto (the "U.S. Underwriters"), for whom you
(the "U.S. Representatives") are acting as representatives, 102,000,000 Ordinary
Shares, S$0.25 par value per share (the "Ordinary Shares"), of the Company
directly or in the form of American Depositary Shares (the "ADSs") (said
Ordinary Shares to be issued and sold by the Company being hereinafter called
the "U.S. Underwritten Shares"). The Company also proposes to grant to the U.S.
Underwriters an option to purchase up to 15,300,000 additional Ordinary Shares
to cover over-allotments (the "U.S. Option Shares" and together with the U.S.
Underwritten Shares, the "U.S. Shares").
It is understood that the Company is concurrently entering
into the International Underwriting Agreement dated as of the date hereof
providing for the sale by the Company of an aggregate of 51,000,000 Ordinary
Shares directly or in the form of ADSs (said Ordinary Shares to be issued and
sold by the Company pursuant to the International Underwriting Agreement being
hereinafter called the "International Underwritten Shares") and providing for
the grant to the International Underwriters of an option to purchase from the
Company up to 7,650,000 additional Ordinary Shares to cover over-allotments (the
"International Option Shares" and together with the International Underwritten
Shares, the "International Shares").
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* Plus an option to purchase from the Company up to 25,500,000 additional
Ordinary Shares directly or in the form of ADSs to cover
over-allotments.
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It is also understood that the Company is concurrently
entering into the Singapore Management and Underwriting Agreement dated as of
the date hereof (hereinafter the "Singapore Underwriting Agreement" and together
with this U.S. Underwriting Agreement and the International Underwriting
Agreement, the "Underwriting Agreements") providing for the sale by the Company
of an aggregate of 17,000,000 Ordinary Shares (said Ordinary Shares to be issued
and sold by the Company pursuant to the Singapore Underwriting Agreement being
hereinafter called the "Singapore Underwritten Shares") and providing for the
grant to the Singapore Underwriters of an option to purchase from the Company up
to 2,550,000 additional Ordinary Shares to cover over-allotments (the "Singapore
Option Shares" and together with the "Singapore Underwritten Shares", the
"Singapore Shares"). The U.S. Shares, together with the International Shares and
the Singapore Shares are hereinafter called the "Shares".
You have also advised the Company that the Underwriters may
elect to cause the Company to deposit on their behalf all or any portion of the
Ordinary Shares to be purchased by them under the Underwriting Agreements
pursuant to the Deposit Agreement, dated as of February [8], 2000 (the "Deposit
Agreement"), to be entered into among the Company, Citibank N.A., as depositary
(the "Depositary") and all holders from time to time of the ADSs (as hereinafter
defined). Upon deposit of any Ordinary Shares, the Depositary will issue
American Depositary Shares representing the Shares so deposited. The ADSs will
be evidenced by American Depositary Receipts (the "ADRs"). Each ADS will
represent ten Ordinary Shares and each ADR may represent any number of ADSs.
Unless the context otherwise requires, the terms "Underwritten Securities",
"Option Securities", "U.S. Underwritten Securities", "U.S. Option Securities",
"U.S. Securities", "International Underwritten Securities", "International
Option Securities", "International Securities", "Singapore Underwritten
Securities", "Singapore Option Securities", "Singapore Securities" and
"Securities" shall be deemed to refer, respectively, to Underwritten Shares,
Option Shares, U.S. Underwritten Shares, U.S. Option Shares, U.S. Shares,
International Underwritten Shares, International Option Shares, International
Shares, Singapore Underwritten Shares, Singapore Option Shares, Singapore Shares
and Shares, as well as, in each case, to any ADSs representing such securities
and the ADRs evidencing such ADSs.
It is further understood and agreed that the U.S.
Underwriters, International Underwriters and Singapore Underwriters have entered
into an Agreement Among U.S. Underwriters, International Underwriters and
Singapore Underwriters dated the date hereof (the "Agreement Among U.S.
Underwriters, International Underwriters and Singapore Underwriters"), pursuant
to which, among other things, the International Underwriters and Singapore
Underwriters may purchase from the U.S. Underwriters a portion of the U.S.
Securities to be sold pursuant to this U.S. Underwriting Agreement, the U.S.
Underwriters and Singapore Underwriters may purchase from the International
Underwriters a portion of the International Securities to be sold pursuant to
the International Underwriting Agreement, and the U.S. Underwriters and
International Underwriters may purchase from the Singapore Underwriters a
portion of the Singapore Securities to be sold pursuant to the Singapore
Underwriting Agreement.
The offering of the U.S. Shares, directly or in the form of
ADSs, is referred to herein as the "U.S. Offering"; the offering of the
International Shares, directly or in the form of ADSs, is referred to herein as
the "International Offering"; and the offering of the Singapore Shares (which
will be only in the form of Ordinary Shares) is referred to herein as the
"Singapore Offering". The U.S. Offering, International Offering and Singapore
Offering are referred to collectively herein as the "Global Offering".
As part of the Global Offering contemplated by the
Underwriting Agreements, the U.S. Underwriters, the International Underwriters
and the Singapore
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Underwriters have agreed to reserve up to 7,500,000 Ordinary Shares out of the
Underwritten Shares set forth opposite their names on Schedule I to this U.S.
Underwriting Agreement, the International Underwriting Agreement and the
Singapore Underwriting Agreement, respectively, for sale (directly or in the
form of ADSs) to the Company's directors, officers, employees, employees of the
Company's business associates, officers and employees of the Company's
affiliates and certain charitable organizations in Singapore (collectively,
"Participants"), as set forth in the Prospectuses under the heading
"Underwriting" (the "Directed Securities Program"). The Securities to be sold by
the Underwriters pursuant to the Directed Securities Program (the "Directed
Securities") will be sold by them pursuant to the Underwriting Agreements at the
initial public offering price. Any Directed Securities not orally confirmed for
purchase by any Participants by the end of the Business Day in Singapore on
which the Underwriting Agreements are executed will be offered to the other
Participants first, and any of such Directed Securities which are not taken up
by such Participants shall then be offered to the public by the Underwriters as
set forth in the Prospectuses.
To the extent there are no additional U.S. Underwriters listed
on Schedule I other than you, the term U.S. Representatives as used in this U.S.
Underwriting Agreement shall mean you, as U.S. Underwriters, and the terms U.S.
Representatives and U.S. Underwriters shall mean either the singular or plural
as the context requires. The use of the neuter in this U.S. Underwriting
Agreement shall include the feminine and masculine wherever appropriate. Certain
terms used in this U.S.
Underwriting Agreement are defined in Section 20 hereof.
1. Representations and Warranties.
(i) The Company represents and warrants to, and agrees with,
each U.S. Underwriter as set forth below in this Section 1.
(a) The Company has prepared and filed with the Commission a
registration statement (file number 33-93661) on Form F-1, including
the related U.S. Preliminary Prospectus, for registration under the Act
of the offering and sale of the Shares. The Company may have filed one
or more amendments thereto, including the related U.S. Preliminary
Prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission either (1) prior to the
Effective Date of such registration statement, a further amendment to
such registration statement (including the form of final U.S.
Prospectus) or (2) after the Effective Date of such registration
statement, final U.S. Prospectus in accordance with Rules 430A and
424(b). In the case of clause (2), the Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and
the U.S. Prospectus with respect to the Underlying Shares and the
offering thereof directly or in the form of ADSs. As filed, such
amendment and form of final prospectus, or such final prospectus, shall
contain all Rule 430A Information, together with all other such
required information with respect to the Underlying Shares and the
offering thereof directly or in the form of ADSs, and, except to the
extent the U.S. Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest U.S. Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein.
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It is understood that three forms of prospectuses are to be
used in connection with the offering and sale of the Securities: one
form of prospectus relating to the U.S. Securities, which are to be
offered and sold to United States and Canadian Persons, one form of
prospectus relating to the International Securities, which are to be
offered and sold to persons other than United States and Canadian
Persons and one form of prospectus for circulation to potential
subscribers in Singapore relating to the Singapore Securities, which
are to be offered and sold in an initial public offering in Singapore.
The International Prospectus will be the same as the U.S. Prospectus
except that it will have a different front and back cover page. The
Singapore Prospectus will be the same as the International Prospectus
except that it will have a special wrap with information required by
Singapore law. The International Prospectus and the Singapore
Prospectus will not be filed as part of the Registration Statement.
(b) On the Effective Date, the Registration Statement did or
will, and when the U.S. Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined in this
U.S. Underwriting Agreement ) and on any date on which Option
Securities are purchased, if such date is not the Closing Date (a
"settlement date"), each U.S. Prospectus (and any supplements thereto)
will comply in all material respects with the applicable requirements
of the Act and the rules thereunder; on the Effective Date and at the
Execution Time, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, each
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date and
any settlement date, each Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement, or the Prospectuses (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the
Registration Statement or the Prospectuses (or any supplement thereto)
as set forth in Section 8(c) hereof.
(c) The Company has filed with the Commission a registration
statement (file number 505544) on Form F-6 for the registration under
the Act of the offering and sale of the ADSs. The Company may have
filed one or more amendments thereto, each of which has previously been
furnished to you. Such ADR Registration Statement at the time of its
effectiveness did or will comply and on the Closing Date, will comply,
in all material respects with the applicable requirements of the Act
and the rules thereunder and at the time of its Effective Date and at
the Execution Time, did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(d) Each of the Company and Singapore Technologies Assembly
and Test Services, Inc., a corporation organized under the laws of the
State of Delaware, (the "Subsidiary") has been duly incorporated and is
validly existing as a corporation under the laws of the jurisdiction in
which it is chartered or organized with full corporate power and
authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectuses.
The Subsidiary is the only subsidiary of the Company.
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(e) All the outstanding shares of capital stock of the
Subsidiary have been duly and validly authorized and issued, are fully
paid and nonassessable, and are owned by the Company free and clear of
any perfected security interest or any other security interests,
claims, liens or encumbrances;
(f) The Company's authorized, issued and outstanding equity
capitalization is as set forth in the Prospectuses; the outstanding
Ordinary Shares have been duly and validly authorized and issued and
are fully paid and nonassessable; the Securities being sold under the
Underwriting Agreements by the Company have been duly and validly
authorized, and, when issued and delivered to and paid for by the U.S.
Underwriters pursuant to this U.S. Underwriting Agreement, by the
International Underwriters pursuant to the International Underwriting
Agreement, by the Singapore Underwriters pursuant to the Singapore
Underwriting Agreement will be validly issued, fully paid and
nonassessable; the certificates for the Securities are in valid and
sufficient form; the holders of outstanding shares of capital stock of
the Company are not entitled to any preemptive or other rights to
subscribe for the Securities; and, except as set forth in the
Prospectuses, the Company has not issued any options, warrants or other
rights to purchase, or entered into any agreements or other obligations
to issue, or granted any rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership
interests in the Company.
(g) The Securities are freely transferable by the Company to
or for the account of the several Underwriters and their designees and
the initial purchasers thereof, and except as set forth in the
Prospectuses, there are no restrictions on subsequent transfers of the
Securities under the laws of Singapore and of the United States.
(h) The capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectuses. The
capital adjustment as a result of the termination and conversion of
certain of the options granted under the Employees' Share Ownership
Scheme was approved by the Company's shareholders at an extraordinary
general meeting on November 9, 1999 (the "EGM") and has become
effective and has been completed as described in the Prospectuses under
the heading "Management - Employee Benefits Plan".
(i) Each of the Underwriting Agreements and the Deposit
Agreement has been duly authorized, executed and delivered by the
Company.
(j) There is no franchise, contract or other document of a
character required to be described in the Registration Statement, ADR
Registration Statement or Prospectuses, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
description of each such contract, franchise or document in the
Prospectuses is a fair description thereof in all material respects.
(k) Upon issuance by the Depositary of ADSs evidenced by ADRs
against deposit of Underlying Shares in accordance with the provisions
of the Deposit Agreement, such ADRs will be duly and validly issued and
persons in whose names the ADRs are registered will be entitled to the
rights specified in the ADRs and in the Deposit Agreement; and upon the
sale and delivery to the U.S. Underwriters of the U.S. Securities, and
payment therefor, pursuant to this U.S. Underwriting Agreement, the
U.S. Underwriters will acquire good, marketable and valid title to such
U.S. Securities subject to the terms of the Deposit Agreement, free and
clear of all pledges, liens, security interests, charges,
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claims or encumbrances of any kind. There are no limitations on the
rights of any holders of the ADSs to hold or vote the underlying
Ordinary Shares other than those arising in favor of persons purchasing
through the U.S. Underwriters.
(l) Except as described in the Prospectuses, no stamp or other
issuance or transfer taxes or duties are payable to the Republic of
Singapore or any political subdivision or taxing authority thereof or
therein by or on behalf of the Underwriters in connection with (A) the
execution and delivery of the Underwriting Agreements or Deposit
Agreement, (B) the issuance of the Securities in the manner
contemplated by the Underwriting Agreements, (C) the deposit with the
Depositary of the Underlying Shares against issuance of the ADRs
evidencing the ADSs, (D) the sale and delivery by the Company of the
Shares or the ADSs, as the case may be, as contemplated herein or (E)
the resale and delivery of such Shares and ADSs by the Underwriters in
the manner contemplated in the Prospectuses.
(m) Except as described in the Prospectuses, under current
Singapore law and regulations, all dividends and other distributions
declared and payable on the Ordinary Shares may be paid by the Company
to the Depositary and to the holders of Securities, as the case may be,
in Singapore dollars and may be converted into foreign currency and
freely transferred out of Singapore in accordance with the Deposit
Agreement, and all such dividends and other distributions made to
holders of the Underlying Shares or ADRs who are non-residents of
Singapore will not be subject to Singapore income, withholding or other
taxes under the laws and regulations of Singapore and, are otherwise
free and clear of any other tax, duty withholding or deduction in
Singapore and without the necessity of obtaining any government
authorization in Singapore.
(n) No consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein or in the Deposit Agreement,
except such as have been obtained under the Companies Act, Chapter 50
of Singapore and such as have been obtained under the Act, and such as
may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated under the Underwriting
Agreements and in the Prospectuses.
(o) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof or of the Deposit Agreement will
conflict with, result in a breach or violation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company
or the Subsidiary pursuant to, (i) the Memorandum and Articles of
Association of the Company or the Subsidiary, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or the Subsidiary is a party or bound
or to which their respective property is subject, except such conflict,
breach, violation or imposition of any lien, charge or encumbrance
which would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and the Subsidiary,
taken as a whole, whether or not arising from transactions in the
ordinary course of business (a "Material Adverse Effect"), or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable to
the Company or the Subsidiary of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or the
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Subsidiary or any of their respective properties except, in the case of
the Subsidiary, any such conflict, breach, violation or imposition of
any lien, charge or encumbrance which would not, individually or in the
aggregate, have a Material Adverse Effect.
(p) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectuses, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended.
(q) No holder of securities of the Company has rights to the
registration of such securities under the Registration Statement or the
ADR Registration Statement.
(r) The consolidated historical financial statements and
schedules of the Company included in the Prospectuses and the
Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the
Company as of the dates and for the periods indicated, comply as to
form with the applicable accounting requirements of the Act and have
been prepared in conformity with generally accepted accounting
principles of the United States applied on a consistent basis
throughout the periods involved (except as otherwise noted therein).
The summary and selected financial data set forth under the caption
"Recent Development", "Summary Financial Data" and "Selected
Consolidated Financial Data", respectively, in the Prospectuses and
Registration Statement present fairly in all material respects, on the
basis stated in the Prospectuses and the Registration Statement, the
information included therein.
(s) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or the Subsidiary or their property is pending or, to the best
knowledge of the Company, threatened that (i) could reasonably be
expected to have a material adverse effect on the performance of this
U.S. Underwriting Agreement or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected
to have a Material Adverse Effect, except as set forth in the
Prospectus.
(t) Each of the Company and the Subsidiary owns or leases all
such properties as are necessary to the conduct of its operations as
presently conducted, except where such failure to own or lease would
not, individually or in the aggregate, have a Material Adverse Effect.
(u) Neither the Company nor the Subsidiary is in violation or
default of (i) any provision of its charter or by-laws, (ii) any
provision of the United States Foreign Corrupt Practice Act of 1997,
(iii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound or to
which its property is subject, or (iv) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or the Subsidiary or any of their
properties, as applicable except in the case of clauses (iii) or (iv),
where such violation or default (A) would not, individually or in the
aggregate, have a Material Adverse Effect or (B) would not,
individually or in the aggregate, have a material adverse effect in the
performance of this U.S. Underwriting Agreement or the consummation of
any of the transactions contemplated herein;
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(v) KPMG, who have certified certain financial statements of
the Company and delivered their report with respect to the audited
consolidated financial statements and schedules included in the
Prospectuses, are independent public accountants with respect to the
Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(w) The Company has not paid or agreed to pay to any person
(other than the Underwriters pursuant to the Underwriting Agreements)
any compensation for soliciting another to purchase any securities of
the Company.
(x) Each of the Company and the Subsidiary possesses all
licenses, certificates, permits and other authorizations issued by the
appropriate Singaporean, U.S. federal and state, and any other foreign
regulatory authorities necessary to conduct its business in the manner
described in and contemplated by, the Prospectuses except, in the case
of the Subsidiary, where the failure to possess any such license,
permit, certificate or other authorization would not, individually or
in the aggregate, have a Material Adverse Effect, and neither the
Company nor the Subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect, except as set forth in the Prospectuses.
(y) No labor problem or dispute with the employees of the
Company or the Subsidiary exists or, to the best knowledge of the
Company, is threatened or imminent and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
principal suppliers, contractors or customers, that could have a
Material Adverse Effect, except as set forth in the Prospectuses.
(z) The Company and the Subsidiary are insured by independent
insurers against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; all
policies of insurance insuring the Company or the Subsidiary or their
respective businesses, assets, employees, officers and directors are in
full force and effect; the Company and the Subsidiary are in compliance
with the terms of such policies and instruments in all material
respects; and there are no claims by the Company or the Subsidiary
under any such policy or instrument as to which any insurance company
is denying liability or defending under a reservation of rights clause;
neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for; and neither the Company nor
the Subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary
to continue its business at a cost that would not, individually or in
the aggregate, have a Material Adverse Effect, except as set forth in
the Prospectuses (exclusive of any supplement thereto).
(aa) To the Company's best knowledge, the Company and the
Subsidiary own, possess, license or have other rights to use all
patents, patent applications, trade and service marks, trade and
service ▇▇▇▇ registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual
property (collectively, the "Intellectual Property") necessary for the
conduct of the Company's business as now conducted or as proposed in
the Prospectuses to be conducted, except where the failure to so own,
possess, license or have other rights would not have a Material Adverse
Effect. Except as set forth in the Prospectuses under the captions
"Risk Factors--Our intellectual
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property is important to our ability to succeed in our business but may
be difficult to protect and--We may be subject to intellectual property
rights disputes" or "Business-Intellectual Property", to the Company's
best knowledge: (a) except with respect to certain licenses the Company
has granted to customers for assembly or testing development programs
thereof, there are no rights of third parties in connection with any
such Intellectual Property; (b) there is no material infringement by
third parties of any such Intellectual Property; (c) there is no
pending or threatened action, suit, proceeding or claim by any third
party challenging the Company's rights in or to any such Intellectual
Property, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (d) there is no pending or
threatened action, suit, proceeding or claim by any third party
challenging the validity or scope of any such Intellectual Property,
and the Company is unaware of any facts which would form a reasonable
basis for any such claim; (e) there is no pending or threatened action,
suit, proceeding or claim by others that the Company infringes or
otherwise violates any patent, trademark, copyright, trade secret or
other proprietary rights of any third party, and the Company is unaware
of any other fact which would form a reasonable basis for any such
claim in the case of any of (a) through (e) above, which would have a
Material Adverse Effect and (f) such Intellectual Property is valid.
(bb) The Company has implemented a comprehensive, detailed
program to analyze and address the risk that their computer hardware
and software may be unable to recognize and properly execute
date-sensitive functions involving certain dates prior to and any dates
after December 31, 1999 (the "Year 2000 Problem") and has determined
that its computer hardware and software are and will be able to process
all date information prior to and after December 31, 1999 without any
errors, aborts, delays or other interruptions in operations associated
with the Year 2000 Problem;
(cc) The Company and the Subsidiary have filed all Singapore,
U.S. federal, state, and local, and all other tax returns that are
required to be filed or has requested extensions thereof (except in any
case in which the failure so to file would not have a Material Adverse
Effect, except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto)) and have paid all taxes required
to be paid by them and any other assessment, fine or penalty levied
against them, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as would not have a Material
Adverse Effect, except as set forth in the Prospectuses (exclusive of
any supplement thereto).
(dd) No Underwriter will be deemed resident, domiciled,
carrying on business or subject to taxation in Singapore solely by
reason of the execution, delivery, consummation or enforcement of this
U.S. Underwriting Agreement or any other document to be furnished
hereunder and no holder of the Securities will be deemed to be resident
or domiciled in Singapore solely by reason of holding such Securities.
(ee) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
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accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(ff) The Company represents and warrants that (i) the
Registration Statement, the ADR Registration Statement, the
Prospectuses and the Preliminary Prospectuses comply, and any further
amendments or supplements thereto will comply, with any applicable laws
or regulations of foreign jurisdictions in which the Prospectuses or
Preliminary Prospectuses, as amended or supplemented, if applicable,
are distributed in connection with the Directed Securities Program; and
that (ii) no authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court is necessary to offer and sell Securities
pursuant to the Directed Securities Program, other than such as have
been obtained, under the laws and regulations of any jurisdiction in
which the Directed Securities are offered outside the United States.
(gg) The Company and the Subsidiary are (i) in compliance with
any and all applicable Singaporean, U.S. federal, state and local and
Singapore laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (ii) have
received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) have not received notice
of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants, except where such non-compliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals, or liability would not, individually or in the
aggregate, have a Material Adverse Effect, except as set forth in the
Prospectuses (exclusive of any supplement thereto).
(hh) The Company and the Subsidiary are in compliance with all
applicable employee pension and employee benefit plans except where
such non-compliance would not, individually or in the aggregate, have a
Material Adverse Effect.
(ii) The Company does not believe that it is a Passive Foreign
Investment Company ("PFIC") within the meaning of Section 1296 of the
United States Internal Revenue Code of 1986, as amended, and does not
expect to become a PFIC in the future.
(jj) Neither the Company nor the Subsidiary nor any of its or
their properties or assets has any immunity from the jurisdiction of
any court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution or
otherwise) under the laws of Singapore.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each U.S.
Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties set forth in this U.S.
Underwriting Agreement, the Company agree to sell to each U.S. Underwriter, and
each U.S.
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Underwriter agrees, severally and not jointly, to purchase from the Company, at
a purchase price of U.S. $- per Ordinary Share in the case of U.S. Underwritten
Securities to be delivered in the form of ADS or in the form of Ordinary Shares,
the amount of the U.S. Underwritten Securities set forth opposite such U.S.
Underwriter's name in Schedule I to this U.S. Underwriting Agreement. The
respective numbers of U.S. Underwritten Securities to be delivered in the form
of ADS or Ordinary Shares shall be pursuant to the direction of the U.S.
Representatives.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties set forth in this U.S. Underwriting
Agreement, the Company hereby grants an option to the several U.S. Underwriters
to purchase, severally and not jointly, up to 15,300,000 U.S. Option Securities
at the same purchase price per Ordinary Share as the U.S. Underwriters shall pay
for the U.S. Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the U.S. Underwritten Securities by the U.S.
Underwriters. Said option may be exercised in whole or in part at any time (but
not more than once) on or before the 30th day after the date of the U.S.
Prospectus upon written notice by the U.S. Representatives to the Company
setting forth the number of shares of the U.S. Option Securities as to which the
several U.S. Underwriters are exercising the option and the settlement date. The
number of U.S. Option Securities to be purchased by each U.S. Underwriter shall
be the same percentage of the total number of shares of the U.S. Option
Securities to be purchased by the several U.S. Underwriters as such U.S.
Underwriter is purchasing of the U.S. Underwritten Securities, subject to such
adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
3. Delivery and Payment. Delivery of and payment for the U.S.
Underwritten Securities and the U.S. Option Securities (if the option provided
for in Section 2(b) hereof shall have been exercised on or before the third
Business Day prior to the Closing Date) shall be made at 9:00 AM, New York City
time, on February [8], 2000, (unless postponed in accordance with Section 9
hereof) or at such time on such later date not more than ten Business Days after
the foregoing date as the U.S. Representatives and the Company shall agree,
(such date and time of delivery and payment for the U.S. Securities being called
in this U.S. Underwriting Agreement the "Closing Date"). Delivery of the U.S.
Securities shall be made to the U.S. Representatives for the respective accounts
of the several U.S. Underwriters against payment by the several U.S.
Underwriters through the U.S. Representatives of the aggregate purchase price of
the U.S. Securities being sold by the Company to or upon the order of the
Company by wire transfer payable in same-day funds in United States dollars to
the account specified by the Company. Delivery of the U.S. Underwritten
Securities and the U.S. Option Securities shall be made through the facilities
of The Depositary Trust Company unless the U.S. Representatives shall instruct
otherwise.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company will deliver
(at the expense of the Company) to the U.S. Representatives, c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the date
specified by the U.S. Representatives (which shall be within three Business Days
after exercise of said option), certificates for the U.S. Option Securities in
such names and denominations as the U.S. Representatives shall have requested
for the respective accounts of the several U.S. Underwriters, against payment by
the several U.S. Underwriters through the U.S. Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer and payable
in same day funds to the accounts specified by the Company. If settlement for
the U.S. Option Securities occurs after the Closing Date, the Company will
deliver to the U.S. Representatives on the settlement date for the U.S. Option
Securities, and the obligation of the U.S. Underwriters to purchase the U.S.
Option Securities shall be conditioned upon
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receipt of, supplemental opinions, certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the Closing Date
pursuant to Section 6 hereof to the office of Shearman & Sterling, ▇ ▇▇▇▇▇▇▇
▇▇▇▇, #▇▇-▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
The certificates evidencing the U.S. Underwritten Securities
and U.S. Option Securities shall be registered in such names and in such
denominations as ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. may request not less than one full
business day prior to the applicable Closing Date.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the International Underwriting
Agreement and the Singapore Underwriting Agreement, and that the settlement date
for any U.S. Option Securities occurring after the Closing Date, shall occur
simultaneously with the settlement date under the International Underwriting
Agreement and the Singapore Underwriting Agreement for any International Option
Securities and Singapore Option Securities occurring after the Closing Date.
4. Offering by Underwriters. It is understood that the several
U.S. Underwriters propose to offer the U.S. Securities for sale to the public as
set forth in the U.S. Prospectus.
5. Agreements.
(i) The Company agrees with the several U.S. Underwriters
that:
(a) The Company will use its best efforts to cause the
Registration Statement and the ADR Registration Statement, if not
effective at the Execution Time, and any amendment thereof, to become
effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement
or the ADR Registration Statement or supplement to the U.S. Prospectus
or any Rule 462(b) Registration Statement unless the Company has
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration
Statement or the ADR Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the U.S. Prospectus is
otherwise required under Rule 424(b), the Company will cause the U.S.
Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the U.S. Representatives of such timely filing. The
Company will promptly advise the U.S. Representatives (1) when the
Registration Statement and the ADR Registration Statement, if not
effective at the Execution Time, shall have become effective, (2) when
the U.S. Prospectus, and any supplement thereto, shall have been filed
(if required) with the Commission pursuant to Rule 424(b) or when any
Rule 462(b) Registration Statement or ADR Registration Statement shall
have been filed with the Commission, (3) when, prior to termination of
the offering of the Securities, any amendment to the Registration
Statement or the ADR Registration Statement shall have been filed or
become effective, (4) of any request by the Commission or its staff for
any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement or the ADR Registration Statement, or for any
supplement to the U.S. Prospectus or for any additional information,
(5) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the ADR Registration
Statement or the institution or threatening of any proceeding for that
purpose and (6) of the receipt by the Company of any notification with
respect to the
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suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the U.S. Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or the ADR
Registration Statement or supplement the U.S. Prospectus to comply with
the Act or the rules thereunder, the Company promptly will (1) notify
the U.S. Representatives of any such event; (2) prepare and file with
the Commission, subject to the second sentence of paragraph (i)(a) of
this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance; and (3) supply any
supplemented U.S. Prospectus to you in such quantities as you may
reasonably request. If at any time the Company supplements or amends
the U.S. Prospectus, it will promptly make conforming changes to the
International and Singapore Prospectuses and supply copies thereof to
the U.S. Representatives unless otherwise agreed by the U.S.
Representatives.
(c) As soon as practicable, the Company will timely file such
reports pursuant to the Exchange Act as are necessary in order to make
generally available to its security holders and to the U.S.
Representatives an earnings statement or statements covering the 12
month period ending December 31, 2000 of the Company which will satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the U.S. Representatives and
counsel for the U.S. Underwriters, without charge, signed copies of the
Registration Statement and the ADR Registration Statement (including
exhibits thereto) and to each other U.S. Underwriter a copy of the
Registration Statement and the ADR Registration Statement (without
exhibits thereto) and, so long as delivery of a prospectus by an U.S.
Underwriter or dealer may be required by the Act, as many copies of
each U.S. Preliminary Prospectus and the U.S. Prospectus and any
supplement thereto as the U.S. Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions in the United States as the U.S. Representatives may
reasonably designate and will maintain such qualifications in effect so
long as required for the distribution of the U.S. Securities; provided,
however, that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to
take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities,
in any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction is designed to, or
might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company, directly or
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indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange
Act, any Ordinary Shares or ADSs or any securities convertible into, or
exercisable, or exchangeable for, Ordinary Shares or ADSs; or publicly
announce an intention to effect any such transaction, for a period of
180 days after the date of the Underwriting Agreements, provided,
however, that the Company may issue and sell Ordinary Shares pursuant
to any employee stock option plan or stock ownership plan of the
Company in effect at the Execution Time and may file a registration
statement on Form S-8 with respect thereto and the Company may issue
Ordinary Shares issuable upon the conversion of securities or the
exercise of warrants outstanding at the Execution Time.
(g) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Ordinary Shares or the
ADSs.
(h) The Company agrees to pay the costs and expenses relating
to the following matters: (i) the preparation, printing or reproduction
and filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary
Prospectus, each Prospectus, the ADR Registration Statement, and each
amendment or supplement to any of them; (ii) the preparation of the
Deposit Agreement, the deposit of the Underlying Shares under the
Deposit Agreement, the issuance thereunder of ADSs representing such
deposited Underlying Shares, the issuance of ADRs evidencing such ADSs
and the fees of the Depositary; (iii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for
counting and packaging) of such copies of the Registration Statement,
each Preliminary Prospectus, each Prospectus, the ADR Registration
Statement, and all amendments or supplements to any of them, as may, in
each case, be reasonably requested for use in connection with the
offering and sale of the Securities; (iv) the preparation, printing,
authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with
the original issuance and sale of the Securities; (v) the printing (or
reproduction) and delivery of this U.S. Underwriting Agreement, the
International Underwriting Agreement and the Singapore Underwriting
Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (vi) the registration of the Securities
under the Exchange Act and the listing of the Ordinary Shares on the
Stock Exchange of Singapore and the listing of the ADSs on the Nasdaq
National Market; (vii) any registration or qualification of the
Securities for offer and sale under the securities or blue sky laws of
the several states (including filing fees and the reasonable fees and
expenses of counsel for the Underwriters relating to such registration
and qualification); (viii) any filings required to be made with the
National Association of Securities Dealers, Inc. (including filing fees
and the reasonable fees and expenses of counsel for the Underwriters
relating to such filings); (ix) the transportation and other expenses
incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Securities; (x) the fees
and expenses of the Company's accountants and the fees and expenses of
counsel (including ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ & Sterling) for the
Company; (xi) except as may be agreed between the Company and the
Depositary, the cost and charges of any transfer agent or registrar;
(xii) any
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stamp, issue, registration or documentary taxes and duties arising as a
result of the issuance of the Securities, of the sales and delivery of
the Securities by the Company to or for the account of the
Underwriters, of the sale and delivery of the Securities by the
Underwriters to each other and, of the sale and delivery of the
Securities by the Underwriters to the initial purchasers thereof in the
manner contemplated under the Underwriting Agreements; and (xiii) all
other costs and expenses incident to the performance by the Company of
their obligations under the Underwriting Agreements.
(i) The Company covenants with ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. that
the Company will comply with all applicable securities and other
applicable laws, rules and regulations in each foreign jurisdiction in
which the Directed Securities are offered in connection with the
Directed Securities Program.
(ii) Each U.S. Underwriter agrees that (a) it is not
purchasing any of the U.S. Securities for the account of anyone other than a
United States or Canadian Person, (b) it has not offered or sold, and will not
offer or sell, directly or indirectly, any of the U.S. Securities or distribute
any U.S. Prospectus to any person outside the United States or Canada, or to
anyone other than a United States or Canadian Person, and (c) any dealer to whom
it may sell any of the U.S. Securities will represent that it is not purchasing
for the account of anyone other than a United States or Canadian Person and
agree that it will not offer or resell, directly or indirectly, any of the U.S.
Securities outside the United States or Canada, or to anyone other than a United
States or Canadian Person or to any other dealer who does not so represent and
agree; provided, however, that the foregoing shall not restrict (A) purchases
and sales between the International Underwriters or the Singapore Underwriters
on the one hand and the U.S. Underwriters on the other hand pursuant to the
Agreement Among U.S. Underwriters, International Underwriters and Singapore
Underwriters, (B) stabilization transactions contemplated under the Agreement
Among U.S. Underwriters, International Underwriters, and Singapore Underwriters
conducted through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (or through the U.S.
Representatives, International Representatives and Singapore Representatives) as
part of the distribution of the Securities, and (C) sales to or through (or
distributions of U.S. Prospectuses or U.S. Preliminary Prospectuses to) United
States or Canadian Persons who are investment advisors, or who otherwise
exercise investment discretion, and who are purchasing for the account of anyone
other than a United States or Canadian Person.
The agreements of the U.S. Underwriters set forth in this
paragraph (ii) of Section 5 shall terminate upon the earlier of the following
events:
(x) a mutual agreement of the U.S. Representatives,
International Representatives and Singapore Representatives to
terminate the selling restrictions set forth in paragraph (ii) of this
Section 5, Section 5(ii) of the International Underwriting Agreement
and Section 2(e) and (f) of the Agreement Among U.S. Underwriters,
International Underwriters and Singapore Underwriters; or
(y) the expiration of a period of 30 days after the Closing
Date, unless (A) the U.S. Representatives shall have given notice to
the Company, the International Representatives and the Singapore
Representatives that the distribution of the U.S. Securities by the
U.S. Underwriters has not yet been completed, or (B) the International
Representatives shall have given notice to the Company, the U.S.
Representatives and the Singapore Representatives that the distribution
of the International Securities by the International Underwriters has
not yet been completed, or (C) the Singapore Representatives shall have
given notice to the Company, the U.S. Representatives and the
International
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Representatives that the distribution of the Singapore Securities by
the Singapore Underwriters has not yet been completed. If such notice
by the U.S. Representatives, the International Representatives or the
Singapore Representatives is given, the agreements set forth in such
paragraph (ii) shall survive until the earlier of (1) the event
referred to in clause (x) of this subsection or (2) the expiration of
an additional period of 30 days from the date of any such notice.
6. Conditions to the Obligations of the U.S. Underwriters. The
obligations of the U.S. Underwriters to purchase the U.S. Underwritten
Securities and the U.S. Option Securities, as the case may be, shall be subject
to the accuracy of the representations and warranties on the part of the Company
contained in this U.S. Underwriting Agreement as of the Execution Time, the
Closing Date and any settlement date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
under this U.S. Underwriting Agreement and to the following additional
conditions:
(a) If the Registration Statement and the ADR Registration
Statement have not become effective prior to the Execution Time, unless the U.S.
Representatives, International Representatives and Singapore Representatives
agree in writing to a later time, the Registration Statement and the ADR
Registration Statement will become effective not later than (i) 6:00 PM New York
City time on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on such date or
(ii) 9:30 AM on the Business Day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the U.S. Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the U.S. Prospectus, and any such
supplement, will be filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the Registration
Statement or the ADR Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, special Singapore counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, substantially in the form set forth in Appendix A hereto.
(c) The Company shall have requested and caused Shearman &
Sterling, counsel for the Company, to have furnished to the Representatives
their opinion, dated the Closing Date and addressed to the Representatives,
substantially in the form set forth in Appendix B hereto.
(d) The Depositary shall have requested and caused Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, counsel for the Depositary, to have furnished
to the Representatives their opinion dated the Closing Date and addressed to the
Representatives, substantially in the form set forth in Appendix C hereto.
(e) The Representatives shall have received from Cravath,
Swaine & ▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Registration Statement, the ADR
Registration Statement, the Prospectuses (together with any supplement thereto)
and other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
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(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have examined
the Registration Statement, the ADR Registration Statement, the Prospectuses,
any supplements to the Prospectuses and the Underwriting Agreements and that:
(i) the representations and warranties of the Company in the
Underwriting Agreements are true and correct in all material respects
on and as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or the ADR Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to
the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectuses (exclusive of any supplement thereto),
there has been no material adverse change in the condition (financial
or otherwise), prospects, earnings, business or properties of the
Company and the Subsidiary, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectuses (exclusive of any
supplement thereto).
(g) The Company shall have requested and caused KPMG to have
furnished to the Representatives letters, dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the
applicable rules and regulations adopted by the Commission thereunder
and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included in the Registration
Statement and the Prospectuses and reported on by them comply as to
form in all material respects with United States generally accepted
accounting principles and the applicable accounting requirements of the
Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company and the
Subsidiary; a reading of the minutes of the meetings of the
shareholders, directors and budget, audit and executive resource and
compensation committees of the Company and the Subsidiary; and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and the Subsidiary
as to transactions and events subsequent to September 30, 1999, nothing
came to their attention which caused them to believe that:
(1) with respect to the period subsequent to
September 30, 1999, there were any changes, at a specified
date not more than five days prior to the date of the letter,
in the short term debt or long-term debt of the Company and
the Subsidiary or the shareholders equity or share capital of
the Company or decrease in the working capital of the Company
and the Subsidiary, as compared with the amounts shown on
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the September 30, 1999, consolidated balance sheet included in
the Registration Statement and the Prospectuses, or for the
period from October 1, 1999 to such specified date there were
any decreases, as compared with the corresponding period in
the preceding year; in net revenues, operating income, income
before income taxes or in total or per share amounts of net
income of the Company and the Subsidiary, except in all
instances for changes or decreases set forth in such letter,
in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives; and
(2) the information included in the
Registration Statement and Prospectuses in response to Form
20-F, Item 8 (Selected Financial Data) and Item 11
(Compensation of Directors and Officers) is not in conformity
with the applicable disclosure requirements of Form 20-F.
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is derived from the
general accounting records of the Company and the Subsidiary) set forth
in the Registration Statement and the Prospectuses, including the
information set forth under the captions "Recent Development", "Summary
Financial Data", "Selected Consolidated Financial Data",
"Capitalization", "Dilution", "Management's Discussion and Analysis of
Financial Condition and Results of Operations", in the Prospectuses
"Business", "Management", "Certain Transactions", and "Principal
Shareholders", agrees with the accounting records of the Company and
the Subsidiary, excluding any questions of legal interpretation.
References to the Prospectuses in this paragraph (g) include
any supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement (exclusive of any
amendment thereof), and the Prospectuses (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (g) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, prospects, business or properties of the
Company and the Subsidiary, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectuses (exclusive of any supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the U.S. Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the U.S.
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof), the ADR Registration Statement and the Prospectuses
(exclusive of any supplement thereto).
(i) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A hereto from
each executive officer, director of the Company named in the U.S. Prospectus and
selected employees of the Company and Singapore Technologies Pte Ltd., Singapore
Technologies Semiconductor Pte Ltd., and EDB Investments Pte Ltd. addressed to
the Representatives.
(j) The Company and the Depositary shall have executed and
delivered the Deposit Agreement in form and substance satisfactory to the
Representatives and the Deposit Agreement shall be in full force and effect;
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(k) The Depositary shall have furnished or caused to be
furnished to the Representatives certificates satisfactory to the
Representatives evidencing the deposit with the Depositary or its nominee of the
Underlying Shares in respect of which ADSs to be purchased by the Underwriters
on such Closing Date are to be issued, and the execution, issuance,
countersignature (if applicable) and delivery of the ADRs evidencing such ADSs
pursuant to the Deposit Agreement and such other matters related thereto as the
Representatives reasonably request;
(l) The closing of the purchase of the International
Underwritten Securities and Singapore Underwritten Securities to be issued and
sold by the Company pursuant to the International Underwriting Agreement and the
Singapore Underwriting Agreement, respectively, shall occur concurrently with
the closing of the purchase of the U.S. Underwritten Securities described
herein.
(m) The Ordinary Shares shall have been listed and admitted
and authorized for trading on the Stock Exchange of Singapore, and the ADSs
shall have been listed and admitted and authorized for trading on the Nasdaq
National Market and satisfactory evidence of all such actions shall have been
provided to the Representatives.
(n) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(o) The Company shall have delivered a letter from the
President of Singapore Technologies Assembly and Test Services, Inc. confirming
and accepting his appointment as agent for service of process pursuant to
Section 15 hereof and Section [ ] of the Deposit Agreement.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this U.S.
Underwriting Agreement and the International Underwriting Agreement, or if any
of the opinions and certificates mentioned above or elsewhere in this U.S.
Underwriting Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this U.S. Underwriting Agreement and all obligations of the U.S.
Underwriters under this U.S. Underwriting Agreement may be canceled at, or at
any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Shearman & Sterling, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, on the Closing Date.
7. Reimbursement of U.S. Underwriters' Expenses. The Company
has agreed to reimburse the U.S. and International Underwriters severally
through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. on demand for out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities up to a maximum of $750,000, in addition to the costs and expenses to
be paid by the Company pursuant to Section 5(h) hereof. In addition, if the sale
of the U.S. Securities provided for in this U.S. Underwriting Agreement is not
consummated because any condition to the obligations of the U.S. Underwriters
set forth in Section 6 hereof is not satisfied, because of any termination
pursuant to Section 10 hereof or because of any refusal, inability or failure on
the part of the Company to perform any agreement in this U.S. Underwriting
Agreement or comply with any provision hereof other than by reason of a default
by any of the U.S.
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Underwriters, the Company will reimburse the U.S. Underwriters severally through
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities up to a
maximum of US$750,000, in addition to the costs and expenses to be paid by the
Company pursuant to Section 5(h) hereof.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each U.S. Underwriter, the directors, officers,
employees and agents of each U.S. Underwriter and each person who controls any
U.S. Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the ADR Registration Statement as originally filed or in any amendment
thereof, or in any U.S., International or Singapore Preliminary Prospectus or in
any of the Prospectuses, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any U.S. Underwriter through the U.S. Representatives specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the
Company may otherwise have; provided further, that with respect to any untrue
statement or omission of material fact made in any Preliminary Prospectus, the
indemnity agreement contained in this Section 8(a) shall not inure to the
benefit of any U.S. Underwriter from whom the person asserting any such loss,
claim, damage or liability purchased the securities concerned to the extent that
any such loss, claim, damage or liability of such U.S. Underwriter occurs under
the circumstance where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (w) the Company had
previously furnished copies of the Prospectus to the Representatives, (x)
delivery of the Prospectus was required by the Act to be made to such person,
(y) the untrue statement or omission of a material fact contained in the
Preliminary Prospectus was corrected in the Prospectus and (z) there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such securities to such person, a copy of the Prospectus.
(b) The Company agrees to indemnify and hold harmless each
U.S. Underwriter and each person, if any, who controls such U.S. Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) (i) caused by any untrue statement or alleged untrue statement
of a material fact contained in the prospectus wrapper material prepared by or
with the consent of the Company for distribution in foreign jurisdictions in
connection with the Directed Securities Program attached to the Prospectuses or
any Preliminary Prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statement therein,
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when considered in conjunction with the Prospectuses or any applicable
Preliminary Prospectus, not misleading; or (ii) related to, arising out of, or
in connection with the Directed Securities Program; provided that, the Company
shall not be responsible under this subparagraph (ii) for any losses, claim,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted primarily from the bad faith or gross
negligence of any U.S. Underwriter.
(c) Each U.S. Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, or the ADR Registration
Statement, the employees of the Company and each person who controls the Company
within the meaning of either the Act or the Exchange Act to the same extent as
the foregoing indemnity to each U.S. Underwriter, but only with reference to
written information relating to such U.S. Underwriter furnished to the Company
by or on behalf of such U.S. Underwriter through the U.S. Representatives
specifically for inclusion in the U.S. Preliminary Prospectus and the U.S.
Prospectus. This indemnity agreement will be in addition to any liability which
any U.S. Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page regarding delivery
of the U.S. Securities and, under the heading "Underwriting", (i) the list of
Underwriters and their respective participation in the sale of the Securities,
(ii) the sentences related to concessions and reallowances and (iii) the
paragraph related to stabilization, syndicate covering transactions and penalty
bids in any U.S. Preliminary Prospectus and the U.S. Prospectus constitute the
only information furnished in writing by or on behalf of the several U.S.
Underwriters for inclusion in any U.S. Preliminary Prospectus or the U.S.
Prospectuses.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) or (c) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a), (b) or (c) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be satisfactory to
the indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. Notwithstanding anything
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contained herein to the contrary, if indemnity may be sought pursuant to
paragraph (b) above hereof in respect of such action or proceeding, then in
addition to such separate firm for the indemnified parties, the indemnifying
party shall be liable for the reasonable fees and expenses of not more than one
separate firm (in addition to any local counsel) for the U.S. Underwriters for
the defense of any losses, claims, damages and liabilities arising out of the
Directed Securities Program, and all persons, if any, who control such U.S.
Underwriters within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act. It is understood, however, that the Company shall, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Underwriters and controlling persons, which firm shall be designated in
writing by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought under this U.S. Underwriting Agreement (whether or
not the indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent.
(e) In the event that the indemnity provided in paragraph (a),
(b) or (c) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and the U.S. Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the
Company, and one or more of the U.S. Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and by the U.S. Underwriters on the other from the
offering of the U.S. Securities; provided, however, that in no case shall any
U.S. Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the U.S. Securities) be responsible for any amount
in excess of the underwriting discount or commission applicable to the
Securities purchased by such U.S. Underwriter under this U.S. Underwriting
Agreement. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the U.S. Underwriters severally
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
of the U.S. Underwriters on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the U.S. Underwriters shall be deemed to be equal
to the total underwriting discounts and commissions, in each case as set forth
on the cover page of the U.S. Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the U.S. Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the U.S. Underwriters agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (e), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
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For purposes of this Section 8, each person who controls an U.S. Underwriter
within the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an U.S. Underwriter shall have the same rights to
contribution as such U.S. Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement or the ADR Registration
Statement, the employees of the Company and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (e).
9. Default by a U.S. Underwriter. If any one or more U.S.
Underwriters shall fail to purchase and pay for any of the U.S. Securities
agreed to be purchased by such U.S. Underwriter or U.S. Underwriters under this
U.S. Underwriting Agreement and such failure to purchase shall constitute a
default in the performance of its or their obligations under this U.S.
Underwriting Agreement, the remaining U.S. Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of U.S. Securities set forth opposite their names in Schedule I hereto bears to
the aggregate amount of U.S. Securities set forth opposite the names of all the
remaining U.S. Underwriters) the U.S. Securities which the defaulting U.S.
Underwriter or U.S. Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of U.S. Securities which
the defaulting U.S. Underwriter or U.S. Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of U.S. Securities set forth
in Schedule I hereto, the remaining U.S. Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the U.S.
Securities, and if such nondefaulting U.S. Underwriters do not purchase all the
U.S. Securities, this U.S. Underwriting Agreement will terminate without
liability to any nondefaulting U.S. Underwriter or the Company. In the event of
a default by any U.S. Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding five Business Days, as
the U.S. Representatives shall determine in order that the required changes in
the Registration Statement, the ADR Registration Statement and the Prospectuses
or in any other documents or arrangements may be effected. Nothing contained in
this U.S. Underwriting Agreement shall relieve any defaulting U.S. Underwriter
of its liability, if any, to the Company and any nondefaulting U.S. Underwriter
for damages occasioned by its default under this U.S.
Underwriting Agreement.
10. Termination. This U.S. Underwriting Agreement shall be
subject to termination in the absolute discretion of the U.S. Representatives,
by notice given to the Company prior to delivery of and payment for the U.S.
Securities, if at any time prior to such time (i) trading in the Company's
Ordinary Shares shall have been suspended by the Stock Exchange of Singapore or
trading in the ADSs shall have been suspended by the Commission or the Nasdaq
National Market or trading in securities generally on the New York Stock
Exchange or the Stock Exchange of Singapore or the Nasdaq National Market shall
have been suspended or limited or minimum prices shall have been established on
either of such Exchanges or the Nasdaq National Market, (ii) a banking
moratorium shall have been declared by U.S. Federal, New York State or Singapore
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities involving the United States or Singapore, declaration by the United
States or Singapore of a national emergency or war, or other calamity or crisis
the effect of which on financial markets is such as to make it, in the sole
judgment of the U.S. Representatives, impractical or inadvisable to proceed with
the offering or delivery of the Securities as contemplated by the U.S.
Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
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Company or its officers and of the U.S. Underwriters set forth in or made
pursuant to this U.S. Underwriting Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any U.S.
Underwriter or the Company or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the U.S. Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this U.S. Underwriting Agreement.
12. Notices. All communications under this U.S. Underwriting
Agreement will be in writing and effective only on receipt, and, if sent to the
U.S. Representatives, will be mailed, delivered or telefaxed to the ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to
such General Counsel at ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: General Counsel; or, if sent to the Company,
will be mailed, delivered or telefaxed to ▇▇▇▇▇▇▇ ▇▇▇▇, (▇▇) ▇▇▇-▇▇▇▇ and
confirmed to it at ST Assembly Test Services Ltd., ▇ ▇▇▇▇▇▇ ▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, attention of the Legal Department.
13. Successors. This U.S. Underwriting Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation under
this U.S. Underwriting Agreement.
14. Applicable Law. This U.S. Underwriting Agreement will be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
15. Jurisdiction. The Company agrees that any suit, action or
proceeding against the Company brought by any U.S. Underwriter, by the
directors, officers, employees and agents of any U.S. Underwriter, or by any
person who controls any U.S. Underwriter, arising out of or based upon this U.S.
Underwriting Agreement or the transactions contemplated hereby may be instituted
in any New York Court, and waives any objection which it may now or hereafter
have to the laying of venue of any such proceeding, and irrevocably submits to
the non-exclusive jurisdiction of such courts in any suit, action or proceeding.
The Company has appointed the President of Singapore Technologies Assembly and
Test Services, Inc. as its authorized agent (the "Authorized Agent") upon whom
process may be served in any suit, action or proceeding arising out of or based
upon this U.S. Underwriting Agreement or the transactions contemplated herein
which may be instituted in any New York Court, by any U.S. Underwriter, the
directors, officers, employees and agents of any U.S. Underwriter, or by any
person who controls any U.S. Underwriter, and expressly accepts the
non-exclusive jurisdiction of any such court in respect of any such suit, action
or proceeding. The Company hereby represents and warrants that the Authorized
Agent has accepted such appointment and has agreed to act as said agent for
service of process, and the Company agrees to take any and all action, including
the filing of any and all documents that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent shall be deemed, in every respect, effective service of process
upon the Company. Notwithstanding the foregoing, any action arising out of or
based upon this U.S. Underwriting Agreement may be instituted by any U.S.
Underwriter, the directors, officers, employees and agents of any U.S.
Underwriter, or by any person who controls any U.S. Underwriter, in any court of
competent jurisdiction in Singapore.
The provisions of this Section 15 shall survive any
termination of this U.S. Underwriting Agreement, in whole or in part.
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16. Currency. Each reference in this U.S. Underwriting
Agreement to U.S. Dollars (the "relevant currency") is of the essence. To the
fullest extent permitted by law, the obligations of the Company and the U.S.
Underwriters in respect of any amount due under this U.S. Underwriting Agreement
will, notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in the
relevant currency that the party entitled to receive such payment may, in
accordance with its normal procedures, purchase with the sum paid in such other
currency (after any premium and costs of exchange) on the Business Day
immediately following the day on which such party receives such payment. If the
amount in the relevant currency that may be so purchased for any reason falls
short of the amount originally due, the party required to pay such original
amount will pay such additional amounts, in the relevant currency, as may be
necessary to compensate for the shortfall. If, alternatively, the amount in the
relevant currency that may be so purchased for any reason exceeds the amount
originally due, the party entitled to receive such original amount will return
such excess amounts, in the relevant currency, to the Company. Any obligation of
the party required to pay such original amount not discharged by such payment
will, to the fullest extent permitted by applicable law, be due as a separate
and independent obligation and, until discharged as provided herein, will
continue in full force and effect.
17. Waiver of Immunity. To the extent that the Company has or
hereafter may acquire any immunity (sovereign or otherwise) from any legal
action, suit or proceeding, from jurisdiction of any court or from set-off or
any legal process (whether service or notice, attachment in aid or otherwise)
with respect to itself or any of its property, the Company hereby irrevocably
waives and agrees not to plead or claim such immunity in respect of its
obligations under this U.S. Underwriting Agreement.
18. Counterparts. This U.S. Underwriting Agreement may be
signed in one or more counterparts, each of which shall constitute an original
and all of which together shall constitute one and the same agreement.
19. Headings. The section headings used in this U.S.
Underwriting Agreement are for convenience only and shall not affect the
construction hereof.
20. Definitions. The terms which follow, when used in this
U.S. Underwriting Agreement, shall have the meanings indicated.
"Act" shall mean the United States Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"ADR Registration Statement" shall mean the registration
statement referred to in paragraph 1(i)(c) above, including all
exhibits thereto, each as amended at the time such part of the
registration statement became effective.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City or Singapore.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement and the ADR Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or become effective.
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"Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this U.S.
Underwriting Agreement is executed and delivered by the parties hereto.
"International Preliminary Prospectus" shall mean any
preliminary prospectus with respect to the offering of the
International Securities.
"International Prospectus" shall mean such form of prospectus
relating to the offering of the International Securities as referred to
in paragraph 1(i)(a) above.
"International Representatives" shall mean the addressees of
the International Underwriting Agreement.
"International Securities" shall mean the International
Underwritten Securities and the International Option Securities.
"International Underwriters" shall mean the several
underwriters named in Schedule I to the International Underwriting
Agreement.
"International Underwriting Agreement" shall mean the
International Underwriting Agreement dated the date hereof related to
the sale of the International Securities by the Company to the
International Underwriters.
"New York Courts" shall mean the U.S. Federal or State courts
located in the State of New York, County of New York.
"Option Securities" shall mean the U.S. Option Securities, the
International Option Securities and the Singapore Option Securities
"Option Shares" shall mean the U.S. Option Shares, the
International Option Shares and the Singapore Option Shares.
"Preliminary Prospectus" shall mean the U.S. Preliminary
Prospectus, the International Preliminary Prospectus and the Singapore
Preliminary Prospectus.
"Prospectuses" and "each Prospectus" shall mean the U.S.
Prospectus, the International Prospectus and the Singapore Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or
any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended
or such Rule 462(b) Registration Statement, as the case may be. Such
term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Representatives" shall mean the U.S. Representatives, the
International Representatives and the Singapore Representatives.
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"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a)(i) hereof.
"Securities" shall mean the U.S. Securities, the International
Securities and the Singapore Securities.
"Shares" shall mean the U.S. Shares, International Shares and
the Singapore Shares.
"Singapore Preliminary Prospectus" shall mean any preliminary
prospects with respect to the offering of the Singapore Securities.
"Singapore Prospectus" shall mean such form of prospectus
relating to the Singapore Securities consisting of a special wrap
around the International Prospectus.
"Singapore Representatives" shall mean the addressees of the
Singapore Underwriting Agreement.
"Singapore Securities" shall mean the Singapore Underwritten
Securities and the Singapore Option Securities.
"Singapore Underwriters" shall mean the several underwriters
named in Schedule I to the Singapore Underwriting Agreement.
"Singapore Underwriting Agreement" shall mean the Singapore
Management and Underwriting Agreement dated the date hereof related to
the sale of the Singapore Securities by the Company to the Singapore
Underwriters.
"Underlying Shares" shall mean the Shares that will be
represented by the ADSs.
"Underwriter" and "Underwriters" shall mean the U.S.
Underwriters, the International Underwriters and the Singapore
Underwriters.
"Underwritten Securities" shall mean the U.S. Underwritten
Securities, the International Underwritten Securities and the Singapore
Underwritten Securities.
"Underwritten Shares" shall mean the U.S. Underwritten Shares,
the International Underwritten Shares and the Singapore Underwritten
Shares.
"United States or Canadian Person" shall mean any person who
is a national or resident of the United States or Canada, any
corporation, partnership, or other entity created or organized in or
under the laws of the United States or Canada or of any political
subdivision thereof, or any estate or trust the income of which is
subject to United States or Canadian Federal income taxation,
28
28
regardless of its source (other than any non-United States or
non-Canadian branch of any United States or Canadian Person), and shall
include any United States or Canadian branch of a person other than a
United States or Canadian Person. "U.S." or "United States" shall mean
the United States of America (including the states thereof and the
District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"U.S. Preliminary Prospectus" shall mean any preliminary
prospectus with respect to the offering of the U.S. Securities as
referred to in paragraph 1(i)(a) above and any preliminary prospectus
with respect to the offering of the U.S. Securities included in the
Registration Statement at the Effective Date that omits Rule 430A
Information.
"U.S. Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"U.S. Representatives" shall mean the addressees of the U.S.
Underwriting Agreement.
"U.S. Securities" shall mean the U.S. Underwritten Securities
and the U.S. Option Securities.
"U.S. Underwriting Agreement" shall mean this agreement
relating to the sale of the U.S. Securities by the Company to the U.S.
Underwriters.
"U.S. Underwriters" shall mean the several underwriters named
in Schedule I to this U.S. Underwriting Agreement.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several U.S. Underwriters.
Very truly yours,
ST Assembly Test Services Ltd
By:...........................
Name:
Title:
29
29
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇ Securities Corporation
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
By:
............................
Name:
Title:
30
SCHEDULE I
NUMBER OF UNDERWRITTEN
SECURITIES TO BE
U.S. UNDERWRITERS PURCHASED
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇ Securities Corporation
------------
Total . . . . . . . . . ============
31
EXHIBIT A
[Version One]
ST Assembly Test Services Ltd
Public Offering of Ordinary Shares
, 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Salomon Brothers International Limited and
Citicorp Investment Bank (Singapore) Limited
As Representatives of the several U.S. Underwriters,
International Underwriters and Singapore Underwriters,
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed U.S. Underwriting Agreement, International Underwriting Agreement and
Singapore Underwriting Agreement (the "Underwriting Agreements"), between ST
Assembly Test Services Ltd., a company organized under the laws of Singapore
(the "Company"), and each of you as representatives of a group of U.S.
Underwriters, International Underwriters and Singapore Underwriters named
therein, relating to an underwritten public offering of 150,000,000 Ordinary
Shares, S$0.25 par value per share, of the Company, directly or in the form of
American Depositary Shares ("ADSs").
In order to induce you and the other U.S. Underwriters,
International Underwriters and Singapore Underwriters to enter into the
Underwriting Agreements, the undersigned will not, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., offer, sell, contract to sell, pledge or
otherwise dispose of (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise), directly or indirectly, or
announce the offering of, any Ordinary Shares or ADSs or any securities
convertible into, or exercisable or exchangeable for, Ordinary Shares or ADSs,
for a period of 180 days after the date of the Underwriting Agreements, other
than Directed Securities (as defined in the Underwriting Agreements), or
Ordinary Shares or ADSs disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Inc.
If for any reason the Underwriting Agreements shall be
terminated prior to the Closing Date (as defined in the Underwriting
Agreements), the agreement set forth above shall likewise be terminated.
Yours very truly,
[SIGNATURE OF SELECTED EMPLOYEE OR
MAJOR STOCKHOLDER]
[NAME AND ADDRESS OF SELECTED EMPLOYEE
OR MAJOR STOCKHOLDER]
32
2
[Version Two]
ST Assembly Test Services Ltd
Public Offering of Ordinary Shares
, 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Salomon Brothers International Limited and
Citicorp Investment Bank (Singapore) Limited
As Representatives of the several U.S. Underwriters,
International Underwriters and Singapore Underwriters,
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed U.S. Underwriting Agreement, International Underwriting Agreement and
Singapore Underwriting Agreement (the "Underwriting Agreements"), between ST
Assembly Test Services Ltd., a company organized under the laws of Singapore
(the "Company"), and each of you as representatives of a group of U.S.
Underwriters, International Underwriters and Singapore Underwriters named
therein, relating to an underwritten public offering of 150,000,000 Ordinary
Shares, S$0.25 par value per share, of the Company, directly or in the form of
American Depositary Shares ("ADSs").
In order to induce you and the other U.S. Underwriters,
International Underwriters and Singapore Underwriters to enter into the
Underwriting Agreements, the undersigned will not, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., offer, sell, contract to sell, pledge or
otherwise dispose of (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise), directly or indirectly, or
announce the offering of, any Ordinary Shares or ADSs or any securities
convertible into, or exercisable or exchangeable for, Ordinary Shares or ADSs,
for a period of 180 days after the date of the Underwriting Agreements, other
than Ordinary Shares or ADSs disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
If for any reason the Underwriting Agreements shall be
terminated prior to the Closing Date (as defined in the Underwriting
Agreements), the agreement set forth above shall likewise be terminated.
Yours very truly,
[SIGNATURE OF OFFICER, DIRECTOR OR SELECTED
EMPLOYEE]
[NAME AND ADDRESS OF OFFICER, DIRECTOR
OR SELECTED EMPLOYEE]
33
APPENDIX A
[On the letterhead of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇]
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇ Securities Corporation
as U.S. Representatives of the several U.S. Underwriters
Salomon Brothers International Limited
Credit Suisse First Boston (Singapore) Limited
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
Societe Generale
as International Representatives of the several
International Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
[8th] February, 2000
Dear Sirs,
1. We have acted as legal counsel to ST Assembly Test Services Ltd (the
"Company") in the Republic of Singapore in connection with a global offering
(the "Offering") of 150,000,000 ordinary shares ("Ordinary Shares") of par value
S$0.25 each in the capital of the Company (such offered Ordinary Shares, the
"Offered Shares"), directly or in the form of American Depositary Shares
("ADSs"), as described in the prospectus contained in the Company's Registration
Statement on Form F-1, as amended (the "Registration Statement"), filed with the
United States Securities and Exchange Commission. We are delivering this opinion
to you at the request of the Company pursuant to (i) Section [6(b)] of the U.S.
Underwriting Agreement (the "U.S. Underwriting Agreement") dated [27th] January,
2000 among the U.S. Underwriters named therein and the Company and (ii) Section
[6(b)] of the International Underwriting Agreement (the "International
Underwriting Agreement") dated [27th] January, 2000 among the International
Underwriters named therein and the Company.
2. For the purpose of rendering this opinion, we have examined:-
(i) an executed copy of the U.S. Underwriting Agreement;
(ii) an executed copy of the International Underwriting Agreement;
(iii) an executed copy of the Management and Underwriting Agreement
relating to the Singapore Retail Offering (the "Singapore
Underwriting Agreement") dated [28th] January, 2000 among the
Managers named therein and the Company;
(iv) an executed copy of the Deposit Agreement (as defined in the
U.S. Underwriting Agreement);
(v) the prospectus (the "U.S. Prospectus") dated [28th] January,
2000 relating to the U.S. Offering (as defined in the U.S.
Underwriting Agreement);
34
2
(vi) the prospectus (the "International Prospectus") dated [28th]
January, 2000 relating to the International Offering (as
defined in the U.S. Underwriting Agreement);
(vii) the prospectus (the "Singapore Prospectus" and together with
the U.S. Prospectus and the International Prospectus, the
"Prospectus") dated [28th] January, 2000 incorporating the
International Prospectus and relating to the Singapore Retail
Offering;
(viii) the Registration Statement;
(ix) the Company's Registration Statement on Form F-6 (the "ADR
Registration Statement"1) filed with the United States
Securities and Exchange Commission;
(x) certified true copies of the Memorandum and Articles of
Association of the Company and its Certificate of
Incorporation;
(xi) resolutions, and certified extracts of resolutions, of the
Board of Directors of the Company ("Board Resolutions") and of
the shareholders of the Company ("Shareholders' Resolutions")
passed since the date of incorporation of the Company up to
[ ], 2000, relating to, inter alia, the authorisation for the
issue of, and the allotment and issue of, shares in the
capital of the Company and the Offering which were provided to
us for inspection by the Company;
(xii) a copy of the letter from the Stock Exchange of Singapore
Limited ("SES") dated 30th September, 1999 granting approval
in principle for the listing of and quotation for the entire
issued share capital of the Company on the Main Board of the
SES (the "AIP Letter"); and
(xiii) such other documents as we have considered necessary or
desirable to examine in order that we may render this opinion.
3. We have assumed:-
(i) that each of the U.S. Underwriting Agreement, the
International Underwriting Agreement and the Deposit Agreement
(together the "Transaction Agreements") is within the capacity
and powers of, and has been validly authorised by, each party
thereto (other than the Company) and has been validly executed
and delivered by and on behalf of each party thereto;
(ii) the genuineness of all signatures on all documents and the
completeness, and the conformity to original documents, of all
copies submitted to us;
(iii) that copies of the Memorandum and Articles of Association and
the Certificate of Incorporation of the Company submitted to
us for examination are true, complete and up-to-date copies;
(iv) that copies of the Board Resolutions and the Shareholders'
Resolutions submitted to us for examination are true, complete
and up-to-date copies;
(v) that the information disclosed by the search made on [8th]
February, 2000 at the Registry of Companies and Businesses in
the Republic of
35
3
Singapore against the Company is true and complete and that
such information has not since then been materially altered
and that such search did not fail to disclose any material
information which has been delivered for filing but did not
appear on the public file at the time of the search;
(vi) that the information disclosed by the search made on [8th]
February, 2000 of the Cause Book kept at the Supreme Court of
the Republic of Singapore against the Company is true and
complete and that such information has not since then been
materially altered and that such search did not fail to
disclose any material information which has been delivered for
filing but was not disclosed at the time of the search;
(vii) that each of the Transaction Agreements constitutes legal,
valid, binding and enforceable obligations of the parties
thereto for all purposes under the laws of all relevant
jurisdictions other than the Republic of Singapore;
(viii) that there are no provisions of the laws of any jurisdiction
other than the Republic of Singapore which may be contravened
by the execution or delivery of any of the Transaction
Agreements and that, insofar as any obligation expressed to be
incurred or performed under any of the Transaction Agreements
falls to be performed in or is otherwise subject to the laws
of any jurisdiction other than the Republic of Singapore, its
performance will not be illegal by virtue of the laws of that
jurisdiction;
(ix) that the choice of New York law as the governing law of each
of the Transaction Agreements has been made in good faith and
will be regarded as a valid and binding selection which will
be upheld in the United States federal or state courts in the
State of New York as a matter of New York law and all other
relevant laws except the laws of the Republic of Singapore;
(x) that all consents, approvals, authorisations, licences,
exemptions or orders required from any governmental body or
agency outside the Republic of Singapore and all other
requirements outside the Republic of Singapore for the
legality, validity and enforceability of each of the
Transaction Agreements have been duly obtained or fulfilled
and are and will remain in full force and effect and that any
conditions to which they are subject have been satisfied;
(xi) that the Board Resolutions and the Shareholders' Resolutions
have not been rescinded or modified and they remain in full
force and effect and that no other resolution or other action
has been taken which may affect the validity of the Board
Resolutions or the Shareholders' Resolutions;
(xii) that the Offered Shares and the ADSs will be duly offered,
sold and delivered in accordance with the terms of the U.S.
Underwriting Agreement and the International Underwriting
Agreement; and
(xiii) that each of the Transaction Agreements and the Singapore
Underwriting Agreement has been executed and delivered, and
each Prospectus has been issued, in the form of the drafts we
have examined.
4. A search made on [8th] February, 2000 at the Registry of Companies and
Businesses in the Republic of Singapore and at the Supreme Court of the Republic
of
36
4
Singapore revealed no order or resolution for the winding-up of the Company and
no notice of appointment of a receiver or judicial manager for the Company. It
should be noted that such a search is not capable of revealing whether or not a
winding-up petition has been presented. Notice of a winding-up order made or
resolution passed or a receiver or judicial manager appointed may not be filed
at the Registry of Companies and Businesses immediately.
5. We have received a Certificate (the "Certificate") dated [8th] February, 2000
from Mr [ ], a director of the Company, which certifies the matters referred to
in paragraphs [ ] below. In rendering our opinion in paragraphs [ ] below, we
have relied solely on the statements in the Certificate and we have not
ourselves reviewed or examined the corporate secretarial records and documents
of the Company for the purposes of giving such opinion. Nothing has come to our
attention which gives us any reason to believe that the statements in the
Certificate are, as at the date thereof, untrue, inaccurate or misleading in any
respect. We have made no independent investigation into any of the matters set
out in the Certificate and we have not ourselves checked the accuracy or
completeness of, or otherwise verified, the matters set out in the Certificate.
6. Based upon and subject to the foregoing, and subject to the qualifications
set forth below and any matters not disclosed to us, we are of the opinion
that:-
(i) the Company is a company incorporated and validly existing
under the laws of the Republic of Singapore and has the
corporate power and capacity to own or lease its property and
to conduct its business as described in the Prospectus;
(ii) (a) the Company has the corporate power and has taken all
necessary corporate action required under the laws of
the Republic of Singapore to authorise the entry
into, execution and delivery of, the U.S.
Underwriting Agreement, the International
Underwriting Agreement and the Singapore Underwriting
Agreement; and
(b) the Company has the corporate power and has taken all
necessary corporate action required under the laws of
the Republic of Singapore to authorise the entry
into, execution and delivery of the Deposit Agreement
and, assuming due authorisation, execution and
delivery thereof by the Depositary (as defined in the
U.S. Underwriting Agreement), the Deposit Agreement
constitutes a valid and legally binding agreement of
the Company, enforceable in accordance with its
terms;
(iii) the authorised share capital of the Company as at [ ], 2000
conforms as to legal matters to the description thereof set
out on page [ ] of the Prospectus;
(iv) (a) as of [ ], 2000, the [ ] Ordinary Shares
issued and outstanding prior to the issuance of the
Offered Shares in connection with the Offering have
been duly authorised and are validly issued, fully
paid and non-assessable and are not issued in
violation of any pre-emptive or similar rights under
(1) the laws of the Republic of Singapore or (2) the
Memorandum and Articles of Association of the Company
or any other constitutive document of the Company or
any amendment thereto. For the purposes of this
opinion we have assumed that the term "non-
37
5
assessable" in relation to the Ordinary Shares means
under Singapore law that holders of such Ordinary
Shares, having fully paid up all amounts due on such
Ordinary Shares as to nominal amount and premium
thereon, are under no further personal liability to
contribute to the assets or liabilities of the
Company in their capacities purely as holders of such
Ordinary Shares;
(b) no holder of any of the [ ] Ordinary Shares issued
and outstanding prior to the issuance of the Offered
Shares in connection with the Offering are entitled
to any pre-emptive or other rights to subscribe for
any of such Ordinary Shares; and
(c) except as described in the Prospectus under the
caption "Management - Employee Benefit Plans", and as
far as we are aware, there are no outstanding
securities issued by the Company convertible into or
exchangeable for, or warrants, rights or options to
purchase from the Company, or obligations of the
Company to issue, Ordinary Shares;
(v) the Offered Shares to be issued in connection with the
Offering have been duly authorised by the Company and, when
issued and delivered to and paid for by the U.S. Underwriters
in accordance with the terms of the U.S. Underwriting
Agreement, by the International Underwriters in accordance
with the terms of the International Underwriting Agreement and
by the Managers pursuant to the Singapore Underwriting
Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Offered Shares will
not be subject to any pre-emptive or similar rights under (a)
the laws of the Republic of Singapore or (b) the Memorandum
and Articles of Association of the Company or any other
constitutive document of the Company or any amendment thereto;
there are no restrictions on the transfer of the Offered
Shares under the laws of the Republic of Singapore except as
described under the captions "Description of Share Capital -
Transfer of Ordinary Shares" and "Description of American
Depository Shares - Withdrawal of Ordinary Shares Upon
Cancellation of ADSs" in the Prospectus;
(vi) the capital restructuring exercise undertaken by the Company
and as described under the captions "Capitalization" and
"Management - Employee Benefit Plans" in the Prospectus was
approved by the Company at the Extraordinary General Meeting
of the Company held on 9th November, 1999 and has become
effective and has been completed. The Articles of Association
of the Company referred to in the Prospectus under the caption
"Description of Ordinary Shares" were adopted by the Company
at the Extraordinary General Meeting of the Company held on
19th January, 2000 and are effective;
(vii) as at the date hereof:-
(a) we are not representing the Company in any legal or
governmental proceedings, pending or threatened, to
which the Company is a party or to which any of the
properties of the Company is subject which could
reasonably be expected to have a material adverse
effect on the performance of the Transaction
Agreements or the Singapore Underwriting Agreement or
the consummation of any transactions contemplated
therein or could
38
6
reasonably be expected to have a material adverse
effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the
Company; and
(b) we are not aware of the existence of any legal or
governmental proceedings in the Republic of Singapore
to which the Company is a party or to which any of
the properties of the Company is subject;
(viii) no consent, approval, authorisation or order of or
qualification with any governmental body or agency or stock
exchange authority in the Republic of Singapore was or is
required for the consummation of the transactions contemplated
in the Transaction Agreements and the Singapore Underwriting
Agreement, except as may be required pursuant to the Companies
Act, Chapter 50 of the Republic of Singapore, the Listing
Manual of the SES or the AIP Letter and as have been obtained;
(ix) under the current laws and regulations of the Republic of
Singapore, all dividends declared and payable in respect of
the Ordinary Shares may be paid by the Company to the holder
thereof in Singapore dollars that may be converted into
foreign currency and, when so converted, freely transferred
out of the Republic of Singapore, without the necessity of
obtaining any consents, approvals, authorisations, orders or
clearances from or registering with any Singapore governmental
agency or body or any stock exchange authority; and except as
set forth in the Prospectus under the caption "Taxation -
Singapore Tax Considerations", all dividends paid to holders
of Ordinary Shares who are non-residents of the Republic of
Singapore will not be subject to Singapore income, withholding
or other taxes under the laws of the Republic of Singapore;
(x) the consummation of any of the transactions contemplated in
the Transaction Agreements and the Singapore Underwriting
Agreement (including the issuance and sale of the Offered
Shares in connection with the Offering) (a) have been, in the
case of transactions to which the Company is a party, duly
authorised by the Company and (b) do not contravene (1) any
provision of the laws of the Republic of Singapore, (2) the
Memorandum and Articles of Association of the Company or any
other constitutive document of the Company or any amendment
thereto, (3) any agreement or instrument binding on the
Company and governed by Singapore law and described in Exhibit
A hereto or (4) as far as we are aware, any judgment, order or
decree of any governmental body, agency or court of the
Republic of Singapore having jurisdiction over the Company or
any of its assets;
(xi) it is not necessary, in order to ensure the legality,
validity, enforceability or admissibility in evidence of the
Transaction Agreements and the Singapore Underwriting
Agreement, that they be filed or recorded with any
governmental or other regulatory authorities in the Republic
of Singapore or that any Singapore stamp duty be paid on them;
(xii) no taxes, imposts or duties of any nature (including, without
limitation, stamp or other issuance or transfer taxes or
duties and capital gains, income, withholding or other taxes
but excluding tax on the overall net income of the relevant
person) are payable by or on behalf of the U.S. Underwriters,
the International Underwriters, the Managers or the
39
7
Company to the Republic of Singapore or any political
subdivision or taxing authority thereof or therein in
connection with (a) the execution and delivery of the U.S.
Underwriting Agreement, the International Underwriting
Agreement or the Singapore Underwriting Agreement; (b) the
issuance of the Offered Shares in connection with the
Offering; (c) the deposit of such Offered Shares with the
Depositary against issuance of ADRs evidencing the ADSs to be
sold to the U.S. Underwriters or the International
Underwriters; (d) the sale and delivery of the ADSs to the
U.S. Underwriters in the manner contemplated in the U.S.
Underwriting Agreement or to the International Underwriters in
the manner contemplated in the International Underwriting
Agreement or the sale and delivery of Offered Shares to the
Managers in the manner contemplated in the Singapore
Underwriting Agreement; or (e) except as disclosed in the
Prospectus under the caption "Taxation - Singapore Tax
Considerations", the resale and delivery of such ADSs by the
U.S. Underwriters or the International Underwriters, or the
resale and delivery of such Offered Shares by the Managers, in
the manner contemplated in the relevant Prospectus;
(xiii) the statements in the Prospectus indicated with asterisks in
Appendix A to this opinion under the captions "Exchange
Rates", "Dividend Policy", "Capitalization", "Business -
Enforcement of Civil Liabilities", "Description of Share
Capital" and "Taxation - Singapore Tax Considerations",
insofar as such statements constitute summaries of the
Singapore legal matters referred to therein, fairly present
the information called for with respect to such legal matters
and fairly summarise the matters referred to therein
(including the tax consequences described in connection with
investment in the Ordinary Shares);
(xiv) the choice of New York law as the governing law of the
Transaction Agreements is a valid choice of law and will be
recognised and given effect to by the Singapore courts;
(xv) the submission by the Company to the jurisdiction of the New
York courts contained in the Transaction Agreements and the
appointment by the Company of the President for the time being
of Singapore Technologies Assembly and Test Services, Inc.
presently located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America as its agent for
service of process in connection therewith are, in each case,
valid and binding on the Company under the laws of the
Republic of Singapore and irrevocable and we are not aware of
any reason that the Singapore courts would not give effect to
such submission; and
(xvi) a final and conclusive judgement on the merits properly
obtained against the Company in any competent court of a state
in, or a Federal Court of, the United States of America for a
fixed sum of money in respect of any legal suit or proceedings
arising out of or relating to the Transaction Agreements and
which could be enforced by execution against the Company in
the jurisdiction of the relevant court and has not been stayed
or satisfied in whole may be sued on in the Republic of
Singapore as a debt due from the Company if:-
(a) the relevant court had jurisdiction over the Company
in that the Company was, at the time proceedings were
instituted, resident in
40
8
the jurisdiction in which proceedings has been
commenced or had submitted to the jurisdiction of the
relevant court;
(b) that judgement was not obtained by fraud;
(c) the enforcement of that judgement would not be
contrary to the public policy of the Republic of
Singapore;
(d) that judgement had not been obtained in contravention
of the principles of natural justice; and
(e) the judgement of the relevant court did not include
the payment of taxes, a fine or penalty;
(xvii) the SES has granted in-principle approval for the listing of
the Ordinary Shares on the SES, subject to the conditions set
out in the AIP Letter;
(xviii) none of the U.S. Underwriters or International Underwriters is
or will be deemed to be resident, domiciled, carrying on
business or subject to taxation in the Republic of Singapore
by reason only of the entry into, performance or enforcement
of the U.S. Underwriting Agreement and International
Underwriting Agreement respectively; and
(xix) the Company is not entitled to claim immunity from suit,
execution, attachment or legal process in any proceedings
taken in the Republic of Singapore in relation to the
Transaction Agreements or the Singapore Underwriting
Agreement.
7. This opinion relates only to the laws of general application of the Republic
of Singapore as at the date hereof and as currently applied by the Singapore
courts, and is given on the basis that it will be governed by and construed in
accordance with the laws of the Republic of Singapore. We have made no
investigation of, and do not express or imply any views on, the laws of any
country other than the Republic of Singapore. In respect of the Transaction
Agreements, the Singapore Underwriting Agreement, the Prospectus, the
Registration Statement and the ADR Registration Statement, we have assumed due
compliance with all matters concerning United States Federal and New York laws
and the laws of all other relevant jurisdictions other than the Republic of
Singapore. With respect to all matters of United States Federal and New York
laws we have relied upon, and our opinion is subject to the qualifications,
assumptions and exceptions set forth in, the opinion of Shearman & Sterling,
United States counsel for the Company, delivered pursuant to (i) Section [6(c)]
of the U.S. Underwriting Agreement and (ii) Section [6(c)] of the International
Underwriting Agreement. As to matters of fact material to this opinion, we have
relied on the statements of responsible officers of the Company.
8. The qualifications to which this opinion is subject are as follows:-
(i) enforcement of the obligations of the Company under the
Transaction Agreements or the Singapore Underwriting Agreement
may be affected by prescription or lapse of time, bankruptcy,
insolvency, liquidation, reorganization, reconstruction or
similar laws generally affecting creditors' rights;
(ii) the power of the Singapore courts to grant equitable remedies
such as injunction and specific performance is discretionary
and accordingly a
41
9
Singapore court may make an award of damages where an
equitable remedy is sought;
(iii) where under any of the Transaction Agreements or the Singapore
Underwriting Agreement, any person is vested with a discretion
or may determine a matter in its opinion, Singapore law may
require that such discretionicised reasonably or that such
opinion is based upon reasonable grounds;
(iv) by virtue of the Limitation Act, Chapter 163 of the Republic
of Singapore, failure to exercise a right of action for more
than six years will operate as a bar to the exercise of such
right and failure to exercise such a right for a lesser period
may result in such right being waived;
(v) a Singapore court may stay proceedings if concurrent
proceedings are brought elsewhere;
(vi) where obligations are to be performed in a jurisdiction
outside the Republic of Singapore, they may not be enforceable
in the Republic of Singapore to the extent that performance
would be illegal or contrary to public policy under the laws
of that jurisdiction;
(vii) provisions in each of the Transaction Agreements or the
Singapore Underwriting Agreement as to severability may not be
binding under the laws of the Republic of Singapore and the
question of whether or not provisions which are illegal,
invalid or unenforceable may be severed from other provisions
in order to save such other provisions depends on the nature
of the illegality, invalidity or unenforceability in question
and would be determined by a Singapore court at its
discretion;
(viii) a Singapore court may refuse to give effect to clauses in any
of the Transaction Agreements or the Singapore Underwriting
Agreement in respect of the costs of unsuccessful litigation
brought before a Singapore court or where the court has itself
made an order for costs;
(ix) we express no opinion as to events and conditions which might
violate covenants, restrictions or provisions with respect to
financial ratios or tests or any contractual provision
measured by the financial conditions or results of operation
of the Company or any of its subsidiaries;
(x) we express no opinion on the legality or enforceability of the
performance by the Company of its obligations of
indemnification or contribution set forth in Section [9] of
the U.S. Underwriting Agreement or Section [9] of the
International Underwriting Agreement;
(xi) any term of an agreement may be amended orally by all the
parties notwithstanding provisions to the contrary in the
Transaction Agreements or the Singapore Underwriting
Agreement;
(xii) this opinion is given on the basis that there will be no
amendment to or termination or replacement of the documents,
authorisations and approvals referred to in paragraph 2 of
this opinion and on the basis of the laws of the Republic of
Singapore in force as at the date of this opinion. This
opinion is also given on the basis that we undertake no
responsibility
42
10
to notify any addressee of this opinion of any change in the
laws of the Republic of Singapore after the date of this
opinion; and
(xiii) under general principles of Singapore law, a person who is not
a contracting party to an agreement is not entitled to the
benefit of the agreement and may not enforce the agreement.
9. As the primary purpose of our professional engagement was not to establish or
confirm factual matters or financial, accounting or statistical matters and
because of the wholly or partially non-legal character of many of the statements
contained in the Prospectus, we express no opinion or belief on and do not
assume any responsibility for the accuracy, completeness or fairness of any of
the statements contained in the Prospectus (other than those specifically
referred to in paragraph 7 of this opinion) and we make no representation that
we have independently verified the accuracy, completeness or fairness of such
statements. Without limiting the foregoing, we express no belief and assume no
responsibility for, and have not independently verified the accuracy,
completeness or fairness of the financial statements and schedules and other
financial and statistical data included or incorporated in the Prospectus, and
we have not examined the accounting, financial or statistical records from which
such financial statements, schedules and data are derived.
10. This opinion is rendered by us solely for the benefit of the U.S.
Underwriters and the International Underwriters in their capacity as
underwriters in connection with the transactions referred to in the U.S.
Underwriting Agreement or, as the case may be, the International Underwriting
Agreement. This opinion is strictly limited to the matters stated herein and is
not to be read as extending by implication to any other matter in connection
with any of the Transaction Agreements or otherwise including, but without
limitation, any other document signed in connection with any of the Transaction
Agreements. Further, this opinion is not to be circulated to, or relied upon by,
any other person or quoted or referred to in any public document or filed with
any governmental body or agency without our prior written consent.
Yours faithfully,
43
11
EXHIBIT A
[to come]
44
12
APPENDIX A
[to come]
▇▇
▇▇▇▇▇▇▇▇ ▇
(▇▇) ▇▇▇-▇▇▇▇
[ ], 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇ Securities Corporation
As U.S. Representatives of the several
U.S. Underwriters listed in Schedule "A"
to the U.S. Underwriting Agreement
Salomon Brothers International Limited
Credit Suisse First Boston (Singapore) Limited
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
Societe Generale
As International Representatives of the several
International Underwriters listed in Schedule "A"
to the International Underwriting Agreement
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ST Assembly Test Services Ltd
Ladies and Gentlemen:
We are acting as U.S. counsel for ST Assembly Test Services Ltd, a
company incorporated with limited liability under the laws of the Republic of
Singapore (the "Company"), in connection with a global offering of 170,000,000
Ordinary Shares, S$0.25 par value each, of the Company (the "Shares"), either
directly or in the form of Americal Depositary Shares ("ADSs"), each ADS
representing [ten] Shares, pursuant to (i) the U.S. Underwriting Agreement,
dated January [ ], 2000 (the "U.S. Underwriting Agreement"), among the Company
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC and ▇▇ ▇▇▇▇▇ Securities
Corporation, as U.S. Representatives of the several U.S. Underwriters listed in
Schedule "A" thereto (the "U.S. Underwriters"), (ii) the International
Underwriting Agreement, dated January [ ], 2000 (the "International Underwriting
Agreement") among the Company and [ ], as International Representatives of the
several International Underwriters listed in Schedule "A" thereto (the
"International Underwriters"), and (iii) the Singapore Underwriting Agreement,
dated January [ ], 2000 (together with the U.S. Underwriting Agreement and the
International Underwriting Agreement, the "Underwriting Agreements") among the
Company and [ ], as Singapore Representatives of the several Singapore
Underwriters listed in Schedule "A" thereto (together with the U.S. Underwriters
and the International Underwriters, the "Underwriters").
In this capacity, we have examined a signed copy of the registration
statement on Form F-1 (File No. 333-93661), filed by the Company under the
United States Securities Act of 1933, as amended (the "Securities Act"), with
the United States Securities and Exchange Commission (the "Commission") on [ ],
[ ], and of Amendment No. 1 thereto filed by the Company with the Commission
dated [ ], [ ], and of Amendment No. 2 thereto filed by the Company with the
Commission on [ ],
46
2
[ ] and copies of the related U.S. prospectus and international prospectus (the
registration statement as amended at the time it became effective, including the
exhibits thereto, being hereinafter referred to as the "Share Registration
Statement", and the final U.S. Prospectus dated [ ], [ ] in the form delivered
to the U.S. Underwriters (the "U.S. Prospectus"), and the final International
Prospectus dated [ ], [ ] in the form delivered to the International
Underwriters (the "International Prospectus"), being hereinafter referred to
collectively as the "Prospectuses").
We have also examined a signed copy of the registration statement on
Form F-6 (File No. 333-505544), filed by Citibank, N.A. under the Securities Act
with the Commission on [ ], [ ], and of Amendment No. 1 thereto filed with the
Commission dated [ ], [ ], and of Amendment No. 2 thereto filed with the
Commission on [ ], [ ](such registration statement on Form F-6 at the time when
it became effective, including the exhibits thereto, being hereinafter referred
to as the "ADS Registration Statement" and, together with the Share Registration
Statement, being hereinafter referred to as the "Registration Statements").
We have also reviewed and participated in discussions concerning the
preparation of the Registration Statements and the Prospectuses with certain
directors, officers and employees of the Company, with ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
Singapore counsel to the Company, with KPMG, independent auditors of the
Company, and with representatives of the Underwriters. The limitations inherent
in the independent verification of factual matters and in the role of outside
counsel are such, however, that we cannot and do not assume any responsibility
for the accuracy, completeness and fairness of any of the statements made in the
Registration Statements or the Prospectuses, except as set forth in paragraph
(vii) of our opinion addressed to you, dated the date hereof.
Subject to the limitations set forth in the immediately preceding
paragraph, we advise you that, on the basis of the information we gained in the
course of performing the services referred to above, (A) in our opinion, each of
the Registration Statements, the U.S. Prospectus and the International
Prospectus (other than the financial statements and financial data included
therein or omitted therefrom, as to which we express no view) appear on their
face to be appropriately responsive in all material respects to the requirements
of the Securities Act or the Exchange Act, as the case may be, and the
applicable rules and regulations of the Commission thereunder, and there are no
contracts or other documents known to us after reasonable investigation that are
required to be filed as exhibits to any of the Registration Statements that have
not been so filed, and (B) no facts came to our attention which gave us reason
to believe that (a) any of the Registration Statements (other than the financial
statements and financial data included therein or omitted therefrom, as to which
we express our view), at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading or (b) either of the U.S. Prospectus or International Prospectus
(other than the financial statements and financial data included therein or
omitted therefrom, as to which we express no view), as of its date or the date
hereof, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Very truly yours,
47
3
[ ], 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇ Securities Corporation
As U.S. Representatives of the several
U.S. Underwriters listed in Schedule "A"
to the U.S. Underwriting Agreement
Salomon Brothers International Limited
Credit Suisse First Boston (Singapore) Limited
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
Societe Generale
As International Representatives of the several
International Underwriters listed in Schedule "A"
to the International Underwriting Agreement
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ST Assembly Test Services Ltd
Ladies and Gentlemen:
We are acting as U.S. counsel for ST Assembly Test Services
Ltd, a company incorporated with limited liability under the laws of the
Republic of Singapore (the "Company"), in connection with a global offering of [
] Ordinary Shares, S$[ ] par value each, of the Company (the "Shares"), either
directly or in the form of Americal Depositary Shares ("ADSs"), each ADS
representing [ ] Shares, including the offering of [ ] Shares, either directly
or in the form of ADSs, pursuant to (i) the U.S. Underwriting Agreement, dated
January [ ], 2000 (the "U.S. Underwriting Agreement"), among the Company and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC and ▇▇ ▇▇▇▇▇ Securities
Corporation, as U.S. Representatives of the several U.S. Underwriters listed in
Schedule "A" thereto (the "U.S. UNDERWRITERS"), (ii) the International
Underwriting Agreement, dated January [ ], 2000 (the "International Underwriting
Agreement") among the Company and [ ], as International Representatives of the
several International Underwriters listed in Schedule "A" thereto (the
"International Underwriters"), and (iii) the Singapore Underwriting Agreement,
dated January [ ], 2000 (the "Singapore Underwriting Agreement", and, together
with the U.S. Underwriting Agreement and the International Underwriting
Agreement, the "Underwriting Agreements") among the Company and [ ], as
Singapore Representatives of the several Singapore Underwriters listed in
Schedule "A" thereto (the "Singapore Underwriters", and, together with the U.S.
Underwriters and the International Underwriters, the "Underwriters").
In this capacity, we have examined a signed copy of the registration
statement on Form F-1 (File No. 333-[ ]), filed by the Company under the United
States Securities Act of 1933, as amended (the "Securities Act"), with the
United States Securities and Exchange Commission (the "Commission") on [ ], [ ],
and of Amendment No.
48
4
1 thereto filed by the Company with the Commission dated [ ], [ ], and of
Amendment No. 2 thereto filed by the Company with the Commission on [ ], [ ] and
copies of the related U.S. prospectus and international prospectus (the
registration statement as amended at the time it became effective, including the
exhibits thereto, being hereinafter referred to as the "Share Registration
Statement", and the final U.S. Prospectus dated [ ], [ ] in the form delivered
to the U.S. Underwriters (the "U.S. Prospectus"), and the final International
Prospectus dated [ ], [ ] in the form delivered to the International
Underwriters (the "International Prospectus"), being hereinafter referred to
collectively as the "Prospectuses").
We have also examined a signed copy of the registration statement on
Form F-6 (File No. 333-[ ]), filed by Citibank, N.A. under the Securities Act
with the Commission on [ ], [ ], and of Amendment No. 1 thereto filed with the
Commission dated [ ], [ ], and of Amendment No. 2 thereto filed with the
Commission on [ ], [ ](such registration statement on Form F-6 at the time when
it became effective, including the exhibits thereto, being hereinafter referred
to as the "ADS Registration Statement"). We have also examined a signed copy of
the registration statement on Form 8-A, filed by the Company under the United
States Securities Exchange Act of 1934, as amended (the "Exchange Act"), with
the Commission on [ ], [ ](such registration statement on Form 8-A at the time
when it became effective, including the exhibits thereto, being hereinafter
referred to as the "Form 8-A Registration Statement", and, together with the
Share Registration Statement and the ADS Registration Statement, the
"Registration Statements").
A member of the Staff of the Commission advised us orally that the
Share Registration Statement and the ADS Registration Statement became effective
under the Securities Act at [ ] PM, New York City time, on [ ], [ ]. On [ ],
[ ], a member of the Staff of the Commission advised us orally that there was no
stop order suspending the effectiveness of any of the Registration Statements.
To our knowledge since that date no stop order suspending the effectiveness of
any of the Registration Statements has been issued under the Securities Act or
the Exchange Act, as the case may be, or proceedings therefor initiated or
threatened by the Commission.
We have also examined the Deposit Agreement, dated as of [ ], [ ] (the
"Deposit Agreement"), among the Company, Citibank, N.A., as depositary (the
"Depositary"), and the owners and beneficial owners from time to time of
American Depositary Receipts ("ADRs") thereunder, as well as originals, or
copies identified to our satisfaction, of such corporate records of the Company,
certificates of officers of the Company and other persons, and such other
documents, agreements and instruments as we have deemed necessary as a basis for
the opinions hereinafter expressed. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity of originals of all documents submitted to us as
copies.
Our opinions set forth below are limited to the laws of the State of
New York and the Federal securities Laws of the United States, and we do not
express any opinions herein concerning any other laws. In addition, we have not
been requested to express, and do not express, any opinion with respect to
whether the Deposit Agreement constitutes a valid and legally binding agreement
by owners and beneficial owners from time to time of ADRs.
Based upon and subject to the foregoing, and having regard for such
legal considerations as we deem relevant, we are of the opinion that:
49
5
(i) assuming due authorization, execution and delivery thereof by
the Company under the laws of Singapore, each of the
Underwriting Agreements have been duly executed and delivered
by the Company under the laws of New York;
(ii) the Company is not, and after giving effect to the
transactions contemplated by the Underwriting Agreements and
the Deposit Agreement will not become, an "investment
company" within the meaning of the Investment Company Act of
1940;
(iii) assuming due authorization, execution and delivery thereof by
the Company under the laws of Singapore, the Deposit Agreement
has been duly executed and delivered by the Company under the
laws of New York and assuming further the due authorization,
execution and delivery of the Deposit Agreement by the
Depositary, the Deposit Agreement constitutes a valid and
legally binding agreement of the Company (other than Section
[5.8] thereof as to which we do not express any opinion),
enforceable in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and
to general principles of equity (regardless of whether in a
proceeding in equity or at law).
(iv) assuming due authorization, execution and delivery of the
Deposit Agreement by the Depositary and the Company, upon due
issuance by the Depositary of the ADRs evidencing the ADSs
being delivered by the Company at the Closing Date against the
deposit of the Underlying Shares by the Company in respect
thereof in accordance with the provisions of the Deposit
Agreement, such ADRs have been duly and validly issued and the
persons in whose names such ADRs are registered are entitled
to the rights specified therein and in the Deposit Agreement;
the ADSs and ADRs in respect thereof conform in all material
respects to the descriptions thereof in the Prospectuses,
insofar as such statements purport to summarize certain
provisions of the Deposit Agreement;
(v) no consent, approval, authorization or order of any court or
governmental agency or body of the United States or of the
State of New York is required for the consummation by the
Company of the transaction contemplated in the Underwriting
Agreements or the Deposit Agreement, except (A) the
registration under the Securities Act of the Shares and the
ADSs and the registration under the Exchange Act of the ADSs,
and (B) any other consents, approvals, authorizations or
orders as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution
of the Shares and the ADSs to be purchased under the
Underwriting Agreements;
(vi) the deposit of the Shares being deposited with the Depositary
or its nominee against the issuance of the ADRs evidencing the
ADSs to be delivered at the Closing Date, the sale and
delivery by the Company of the Shares to be delivered at the
Closing Date, the consummation of the transactions
contemplated by the Underwriting Agreements or the Deposit
Agreement and the fulfilment of the terms thereof will not
conflict with, result in a breach or violation of, or
constitute a default under, (A) any law of the United States
or the State of New York and (B)
50
6
any judgment or decree know to us to be applicable to the
Company of any court, regulatory body, administrative agency,
governmental body or arbitrator of the United States or the
State of New York having jurisdiction over the Company;
(vii) the information contained in the Prospectuses under the
headings "Taxation" and "Shares Eligible for Future Sale",
insofar as it purports to summarize the provisions of federal
laws of the United States or the laws of the State of New
York, is true and accurate in all material respects and fairly
summarizes the material federal income tax considerations to
an investment on the Ordinary Shares directly or in the form
of ADSs and the other matters therein;
(viii) the choice of law provision set forth in Section 15 hereof and
in the Deposit Agreement will be recognized by the New York
Courts provided, however, that we express no opinion as to
whether any United States federal court will accept venue of
an action which it may affirmatively determine not to accept
as inconvenient or otherwise inappropriate;
This opinion is being furnished to you solely for your benefit in
connection with the transactions contemplated by the Underwriting Agreements and
the Deposit Agreement, and is not to be used, circulated, quoted or otherwise
referred to for any other purpose without our express written consent, and no
party other than you is entitled to rely on it. Notwithstanding the foregoing
sentence, the Depositary may rely on our opinion in paragraph (iii) as if such
opinion were addressed to it.
Very truly yours
51
7
Appendix C
FORM OF OPINION OF SKADDEN, ARPS, SLATE, ▇▇▇▇▇▇▇ & ▇▇▇▇ L.L.P.
[date]
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇ Securities Corporation
As U.S. Representatives of the several U.S. Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Salomon Brothers International Limited
Credit Suisse First Boston (Singapore) Limited
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
Societe Generale
As International Representatives of the several International Underwriters
c/o
Salomon Brothers International Limited
Victoria Plaza
111 Buckingham Palace Road
London SWIW OSB
England
Re: American Depositary Shares
Each Representing Ten (10) Ordinary Shares of
ST Assembly Test Services Ltd
Ladies and Gentlemen:
We have acted as special United States counsel for Citibank, N.A. in
connection with the Deposit Agreement, dated as of February [8], 2000 (the
"Deposit Agreement"), by and among ST Assembly Test Services Ltd, a company
incorporated under the laws of the Republic of Singapore (the "Company"),
Citibank, N.A., as depositary (the "Depositary"), and Holders and Beneficial
Owners of American Depositary Shares (the "ADSs") evidenced by American
Depositary Receipts (the "ADRs"), --each ADS representing ten (10) ordinary
shares, par value S$0.25 per share, of the Company (the "Shares").
This opinion is being furnished to you pursuant to Section 6(d) of the
U.S. Underwriting Agreement, dated January [27], 2000 among the Company and the
U.S. Underwriters named therein (the "Underwriting Agreement"). Capitalized
terms used and not otherwise defined herein shall have the respective meanings
set forth in the Underwriting Agreement.
We have examined originals or copies of (i) the final Prospectuses,
each dated -, 2000, relating to the ADSs (the "Prospectuses"), (ii) the
registration statement with respect to the ADSs on Form F-6 under the Securities
Act of 1933, as amended (the "Act"), filed on January 11, 2000 (the "ADS
Registration Statement"), (iii) an executed copy of the Deposit Agreement, (iv)
specimen certificates of the ADRs evidencing the ADSs, (v) the Depositary's
Certificate,
52
2
dated -, 2000 and (vi) a certified copy of the Charter and By-Laws of the
Depositary as in effect on the date hereof. We have also examined originals or
copies, certified or otherwise identified to our satisfaction, of such other
documents, certificates and records as we have deemed necessary or appropriate
as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Depositary, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof. As to
any facts material to the opinions expressed herein which were not
independently established or verified, we have relied upon oral or written
statements and representations of officers and other representatives of the
Depositary and others.
Members of our firm are admitted to the bar in the State of New York,
and we do not express any opinion as to the laws of any other jurisdiction (or
as to the effect of the laws of any such jurisdiction on the opinions herein
stated) other than the federal laws of the United States of America to the
extent referred to specifically herein. We have assumed the accuracy,
correctness and validity of all matters relating to or dependent upon the laws
of the Republic of Singapore, including, but not limited to, (i) the due
authorization, execution and delivery of the Deposit Agreement by the Company
under the laws of the Republic of Singapore, (ii) the due execution and delivery
under the laws of the Republic of Singapore by the Depositary of the Deposit
Agreement and the validity and legality thereof under the laws of the Republic
of Singapore, (iii) that, under the laws of the Republic of Singapore, the
Shares have been duly authorized, executed and delivered by the Company and are
validly issued, fully paid and non-assessable, and the holders of the Shares
will be entitled to all the rights of a shareholder conferred by the Memorandum
and Articles of Association of the Company and the Companies Act of the Republic
of Singapore, and (iv) that, under the laws of the Republic of Singapore, upon
due issuance and delivery by the Depositary of the ADRs evidencing the ADSs
against the deposit of the Shares in accordance with the terms of the Deposit
Agreement, such ADRs will be validly issued and will entitle the persons in
whose name each ADR is registered to the rights specified therein and in the
Deposit Agreement.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
(i) the Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and constitutes a legal, valid and binding
instrument enforceable against the Depositary in accordance with its terms,
except to the extent that enforcement thereof may be limited by (a) bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and (b) general
principles of equity (regardless of whether enforcement is considered in a
proceeding at law or in equity);
(ii) the statements in the Prospectuses under the heading "Description
of American Depositary Receipts", insofar as such statements purport to
summarize certain provisions of the Deposit Agreement, the ADSs and the ADRs,
are fair and accurate;
(iii) the Depositary has full power and authority and legal right to
execute and deliver the Deposit Agreement and to perform its obligations
thereunder;
(iv) upon due issuance and delivery by the Depositary of the ADRs
evidencing the ADSs against the deposit of the Shares in accordance with the
terms of the Deposit Agreement, such ADRs will be validly issued and will
entitle the person in whose name each ADR is registered to the rights specified
therein and in the Deposit Agreement; and
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(v) the ADS Registration Statement and each amendment comply as to form
in all material respects with the applicable requirements of the Act and the
rules thereunder.
We have been advised by the U.S. Securities and Exchange Commission
that the ADS Registration Statement has become effective under the Act. To our
knowledge, no stop order suspending the effectiveness of the ADS Registration
Statement has been issued and no proceedings for that purpose have been
instituted or threatened.
This opinion is furnished to you for your benefit in connection with
the execution and delivery of the Deposit Agreement and is not to be used,
circulated, quoted or otherwise referred to for any other purpose without our
express written permission.
Very truly yours,