1
EXHIBIT 1.1
Chartered Semiconductor Manufacturing Ltd.
150,000,000 Ordinary Shares*
directly or in the form of American Depositary Shares
(S$0.26 par value)
Each American Depositary Share representing
the right to receive ten Ordinary Shares
Form of U.S. Underwriting Agreement
New York, New York
__________, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇ Securities Corporation
SoundView Technology Group, Inc.
As U.S. Representatives of the several U.S. Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Ladies and Gentlemen:
Chartered Semiconductor Manufacturing Ltd, a corporation 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, ordinary shares
(the "Ordinary Shares"), S$0.26 par value per share, 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 22,500,000 additional Ordinary Shares
directly or in the form of ADSs to cover overallotments (the "U.S. Option
Shares" and together with the U.S. Underwritten Shares, the "U.S. Shares" or the
"U.S. Securities").
It is understood that the Company is concurrently entering into the
International Underwriting Agreement, (together with this U.S. Underwriting
Agreement, the "Underwriting Agreements") providing for the sale by the Company
of an aggregate of 75,000,000 Ordinary Shares directly or in the form of ADSs
(said Ordinary Shares to be sold by the Company
----------
* Plus an option to purchase from Chartered Semiconductor Manufacturing
Ltd up to 22,500,000 additional Ordinary Shares directly or in the form
of American Depositary Shares to cover overallotments.
2
pursuant to the International Underwriting Agreement being hereinafter called
the "International Underwritten Shares", and together with the U.S. Underwritten
Shares, the "Underwritten Shares") and providing for the grant to the
International Underwriters of an option to purchase from the Company up to
11,250,000 additional Ordinary Shares directly or in the form of ADSs to cover
overallotments (the "International Option Shares" and together with the
International Underwritten Shares, the "International Shares" or the
"International Securities", and the International Securities together with the
U.S. Securities, the "Securities").
It is also understood that the Company is concurrently entering into
the Singapore Management and Underwriting Agreement providing for the sale by
the Company of an aggregate of 25,000,000 Ordinary Shares (said Ordinary Shares
to be issued and sold by the Company pursuant to the Singapore Management and
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 3,750,000 additional Ordinary Shares to cover
overallotments (the "Singapore Option Shares", and together with the Singapore
Underwritten Shares, the "Singapore Shares"). In connection to the Singapore
Offering, the Company has made a listing application with the Stock Exchange of
Singapore Limited (the "SES") and has prepared a prospectus (the "Singapore
Prospectus") for circulation to potential subscribers in Singapore.
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 [ ], 1999 (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. Upon any such deposit of Ordinary
Shares, the Depositary will issue ADSs 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", 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, and Shares, as well as, in each case, to any ADSs representing such
securities.
It is further understood and agreed that the U.S. Underwriters, the
International Underwriters and the 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 the 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 the 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
2
3
U.S. Underwriters and the International Underwriters may purchase from the
Singapore Underwriters a portion of the Singapore Securities to be sold pursuant
to the Singapore Management and 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"; together with the U.S. Offering, the "Combined
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 as the "Global Offering".
As part of the Global Offering contemplated by this U.S.
Underwriting Agreement, the U.S. Underwriters, the International Underwriters
and the Singapore Underwriters have agreed to reserve up to 5% of the Ordinary
Shares (including Ordinary Shares represented by ADSs) out of the Global
Offering for sale to the Company's employees, business associates and one of its
directors, the directors, officers and employees of the Company's affiliates and
to certain charitable organizations in Singapore (collectively, "Participants"),
as set forth in the Prospectuses under the heading "Underwriting" (the "Directed
Share Program"). The Shares to be sold by the U.S. Underwriters, the
International Underwriters and the Singapore Underwriters pursuant to the
Directed Share Program (the "Directed Shares") will be sold by them at the
initial public offering price. The Directed Shares may be sold by the U.S.
Underwriters, the International Underwriters and the Singapore Underwriters
among their respective underwriting syndicates, and in such event, any
commissions may be adjusted upon agreement of the Company and the
representatives of the U.S. Underwriters, the International Underwriters and the
Singapore Underwriters. Any Directed Shares not orally confirmed for purchase by
any Participants by the end of the Business Day on which the Underwriting
Agreements and the Singapore Management and Underwriting Agreement are executed
will be offered to the public by the U.S. Underwriters, the International
Underwriters and the Singapore Underwriters as set forth in the Prospectuses and
the Agreement Among U.S. Underwriters, International Underwriters and Singapore
Underwriters.
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 21 hereof.
1. Representations and Warranties. 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 filed with the Commission a registration
statement (file number 333-88397) on Form F-1, including the related U.S.
Preliminary Prospectus, for the registration under the Act of the offering
and sale of the U.S. Securities. The Company
3
4
may have filed one or more amendments thereto, including the related U.S.
Preliminary Prospectus, which has previously been furnished to you. The
Company will next file with the Commission either (1) prior to the
Effective Date of the Registration Statement, a further amendment to the
Registration Statement (including the form of U.S. Prospectus) or (2)
after the Effective Date of the Registration Statement, the U.S.
Prospectus in accordance with Rules 430A and 424(b). In the case of clause
(2), the Company has included in the 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 the
Registration Statement and the U.S. Prospectus with respect to the
Ordinary Shares and the offering thereof directly or in the form of ADSs.
As filed, such amendment and form of final U.S. Prospectus, or such U.S.
Prospectus, as the case may be, shall contain all Rule 430A Information,
together with all other such required information, with respect to the
underlying Ordinary Shares and the offering thereof directly or in the
form of ADSs, and, except to the extent the U.S. Representatives shall
agree 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.
It is understood that two forms of prospectuses are to be used in
connection with the Combined 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, and 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. The U.S.
Prospectus and the International Prospectus are identical except for the
outside front cover page and the outside back cover page. In addition, the
Singapore Prospectus will be used in connection with the Singapore
Offering.
(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), did not and 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 herein or in writing to
the Company by or
4
5
on behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Prospectuses (or any
supplement thereto). It is understood that the information that has been
furnished in writing by or on behalf of the several Underwriters for
inclusion in the Registration Statement, Preliminary Prospectuses or the
Prospectuses is limited to (A) the names of the Underwriters and their
respective participation in the sale of the Securities as set forth in the
two charts under the heading "Underwriting" in the Preliminary
Prospectuses or Prospectuses, (B) the statements set forth in the last
paragraph on the front cover page of the Preliminary Prospectuses or
Prospectuses regarding delivery of the Securities (and the ADSs
representing such Securities) and (C) the statements set forth in the
seventh, tenth and sixteenth paragraphs under the heading "Underwriting"
in the Preliminary Prospectuses or Prospectuses.
(c) The Company has filed with the Commission a registration
statement (file number 333-88623) on Form F-6 (the "ADR Registration
Statement") 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 the Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of
the jurisdiction in which it is incorporated with full corporate power to
own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectuses, and is duly
qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such qualification,
except where the failure to be so qualified or be in good standing 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 Subsidiaries, taken as a whole.
(e) All the outstanding share capital of each Subsidiary has been
duly and validly authorized and issued and is fully paid and
non-assessable and, except for such shares of Chartered Silicon Partners
Pte Ltd ("CSP") as are owned by Hewlett-Packard Europe B.V., or EDB
Investments Pte Ltd which shares do not exceed 49% of the outstanding
voting shares of CSP, all the outstanding shares of capital stock of the
Subsidiaries are owned by the Company directly free and clear of any
perfected security interests, 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 non-assessable. The Securities being sold under the
Underwriting Agreements by the Company have been
5
6
duly and validly authorized, and, when issued and delivered to the
Depositary or its nominee in accordance with the Deposit Agreement, the
U.S. Underwriters in accordance with this U.S. Underwriting Agreement and
the International Underwriters in accordance with the International
Underwriting Agreement, will be validly issued, fully paid and
non-assessable. The certificates for the Shares and the ADRs are in valid
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
Shares and the Securities except for such rights that have been
effectively waived. Except as disclosed in the Prospectuses, no options,
warrants or other rights to purchase, agreements or other obligations to
issue, or rights to convert any obligations into or exchange any
securities for, shares of capital stock of or ownership interests in the
Company are outstanding. The Securities are freely transferable by the
Company to or for the account of the several Underwriters, 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.
(g) The capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectuses. The
capital restructuring was approved by the Company's shareholders at an
extraordinary general meeting on October 14, 1999 (the "EGM") and has
become effective and has been completed as described in the Prospectuses
under the heading "Capitalization." The Articles of Association described
in the Prospectuses under the heading "Description of Ordinary Shares"
were adopted by the Company's shareholders at the EGM and are in full
force and effect.
(h) Each of this U.S. Underwriting Agreement, the International
Underwriting Agreement, the Singapore Management and Underwriting
Agreement and the Deposit Agreement has been duly authorized, executed and
delivered by the Company.
(i) 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; and each such franchise, contract or
other document to which the Company is a party, assuming due
authorization, execution and delivery thereof by all parties thereto, is
enforceable against the Company, in accordance with its terms, and is in
full force and effect and to the Company's knowledge, is a legal, valid
and binding obligation of the other parties thereto. The statements in the
Prospectuses under the heading "Taxation", fairly summarize the matters
therein described.
(j) Upon deposit of the underlying U.S. Shares with the Depositary
or its nominee pursuant to the Deposit Agreement in accordance with the
terms thereof, all right, title and interest in such U.S. Shares will be
transferred to the Depositary on behalf of the U.S. Underwriters, free and
clear of all pledges, liens, security interests, charges, claims or
encumbrances of any kind. Upon issuance by the Depositary of the ADRs
evidencing the ADSs against deposit of underlying Ordinary Shares in
accordance with the provisions of the Deposit Agreement, such ADRs will be
duly and validly issued and
6
7
persons in whose names the ADRs are duly 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 in accordance with 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, claims or
encumbrances of any kind, other than those arising in favor of the persons
purchasing through the U.S. Underwriters.
(k) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to the Singapore government or any political
subdivision or taxing authority thereof in connection with (A) the
execution and delivery of the Underwriting Agreements, (B) the issuance
of the Shares or the ADSs in the manner contemplated by the Underwriting
Agreements, (C) the deposit with the Depositary of the underlying Ordinary
Shares against issuance of ADRs evidencing the ADSs, (D) the sale and
delivery of the Ordinary Shares and the ADSs to the Underwriters, or (E)
except as disclosed in the Prospectuses under the heading
"Taxation--Singapore Taxation", the resale and delivery of such Ordinary
Shares and ADSs by the U.S. Underwriters or the International Underwriters
in the manner contemplated in the Prospectuses.
(l) Except as described in the Prospectuses, all dividends and other
distributions declared and payable on the Ordinary Shares may under
current Singapore law and regulations be paid to the Depositary and to the
holders of Securities, as the case may be, in Singapore dollars and may be
converted into foreign currency that may be transferred out of Singapore
in accordance with the Deposit Agreement.
(m) No consent, approval (including exchange control approval),
authorization, filing with or order of any court or governmental or
regulatory agency or body is required under Singapore or U.S. federal law
or the laws of any state or political subdivision thereof in connection
with the transactions contemplated in this U.S. Underwriting Agreement,
the International Underwriting Agreement, the Singapore Management and
Underwriting Agreement and the Deposit Agreement, except such as have been
obtained under the Act, the Exchange Act, the Companies Act, Chapter 50 of
Singapore, and such as may be required under the blue sky or similar laws
of any jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters in the manner contemplated in the
Underwriting Agreements and the Prospectuses except as may be required
pursuant to the National Association of Securities Dealers, Inc. rules,
The Nasdaq Stock Market, Inc. rules or the letter from the SES dated
September 15, 1999 granting approval in principle for the listing and
quotation of the entire issued and share capital of the Company on the
Main Board of the SES, as have been obtained.
(n) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions contemplated in this U.S.
Underwriting Agreement, the International Underwriting Agreement, the
Singapore Management and Underwriting Agreement or the Deposit Agreement,
nor the fulfillment of the terms hereof or thereof
7
8
will conflict with, result in a breach or violation of, or imposition of
any lien, charge or encumbrance upon any property or assets of the Company
or any of the Subsidiaries pursuant to, (i) the memorandum and articles of
association of the Company or the constituent documents of any of the
Subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement, permit, license, franchise
or other agreement, obligation, condition, covenant or instrument to which
the Company or any of the Subsidiaries is a party or bound or to which its
or their property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of the
Subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or any of the Subsidiaries or any of its or their properties,
except, with respect to clause (ii) or (iii) above, such as would not
individually or in the aggregate, have a material adverse effect on (A)
the performance of this U.S. Underwriting Agreement or the consummation of
any of the transactions contemplated herein or (B) the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole.
(o) 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 (the "1940
Act").
(p) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement or the
ADR Registration Statement except for such rights that have been
effectively waived.
(q) The consolidated historical financial statements and schedules
of the Company and the Subsidiaries (including the related notes) included
in the Registration Statement and the Prospectuses present fairly in all
material respects the financial condition, results of operations, changes
in financial position and cash flows 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 United States
generally accepted accounting principles ("U.S. GAAP") applied on a
consistent basis throughout the periods indicated (except as otherwise
noted therein). The summary and selected financial data included in the
Registration Statement and the Prospectuses fairly present in all material
respects, on the basis stated in the Registration Statement and the
Prospectuses, the information included therein. The pro forma financial
statements included in the Prospectuses and the Registration Statement
include assumptions that provide a reasonable basis for presenting the
significant effects directly attributable to the transactions and the
events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma adjustments
reflect proper application of those adjustments to the historical
financial statement amounts in the pro forma financial statements included
in the Prospectuses and the Registration Statement. The pro forma
financial statements included in the Prospectuses and the Registration
Statement comply as to form in all material respects with the applicable
accounting requirements of Regulation S-X under the Act and the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of those statements.
8
9
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of the Subsidiaries or its or their property is pending or,
to the 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 on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth or contemplated in
the Prospectuses (exclusive of any supplement thereto).
(s) Each of the Company and the Subsidiaries owns or leases all such
properties as are necessary to the conduct of its operations as presently
conducted. Any real property and buildings held under lease by the Company
or any of the Subsidiaries are held under valid, subsisting and
enforceable leases, with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company or any of the Subsidiaries, in each case except
as described in or contemplated in the Prospectuses.
(t) Neither the Company nor any of the Subsidiaries is in violation
or default of (i) any provision of its Memorandum and Articles of
Association or other constituent documents, (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 it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of the Subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of the
Subsidiaries or any of its or their properties, except, with respect to
clause (ii) or (iii) above, such as would not individually or in the
aggregate, have a material adverse effect on (A) the performance of this
U.S. Underwriting Agreement or the consummation of any of the transactions
contemplated herein or (B) the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole.
(u) KPMG Peat Marwick ("KPMG"), who have certified certain financial
statements of the Company and the Subsidiaries and delivered their report
with respect to the audited consolidated financial statements and
schedules included in the Registration Statement and 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.
(v) The Company has not taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute under the Exchange Act or otherwise,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities, provided,
however, that this provision shall not apply to any trading or
stabilization activities conducted by the Underwriters.
9
10
(w) Each of the Company and the Subsidiaries possesses all licenses,
permits, certificates and other authorizations issued by the appropriate
Singapore, U.S., foreign, federal, state or local regulatory authorities
necessary to conduct its business as currently conducted, except in any
case in which the failure so to possess any such license, permit,
certificate or other authorization 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 Subsidiaries, taken as a whole. Neither the Company nor any of the
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such license, permit, certificate or
authorization which, singly or in the aggregate, if the subject of an
unfavorable decision ruling or findings, would have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in the Prospectuses (exclusive of any
supplement thereto).
(x) [Intentionally Omitted]
(y) No labor dispute with the employees of the Company or any of the
Subsidiaries exists or to the Company's best knowledge, threatened, and
the Company is not aware of any existing labor disturbance by the
employees of any of its or any of the Subsidiaries', that could have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, 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).
(z) Each of the Company and the Subsidiaries is insured by insurers
of recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in which it
is engaged. All policies of insurance insuring the Company or any of the
Subsidiaries or their respective businesses, assets, employees, officers
and directors are in full force and effect; each of the Company and the
Subsidiaries is in compliance with the terms of such policies and
instruments in all material respects; and there are no claims by the
Company or any of the Subsidiaries 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 of the
Subsidiaries has been refused any insurance coverage sought or applied
for. The Company has no reason to believe that either the Company or any
of the Subsidiaries 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 have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, 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).
10
11
(aa) None of the Company's Subsidiaries is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on its capital stock, from repaying to the
Company any loans or advances to it from the Company or from transferring
any of its property or assets to the Company or the other Subsidiary,
except for certain restrictions as set forth in the Joint Venture
Agreement dated July 4, 1997 by and among the Company, Hewlett-Packard
Europe B.V. and EDB Investments Pte Ltd (as amended) or as described in or
contemplated in the Prospectuses.
(bb) The Company and the Subsidiaries own, possess, license or have
other rights to use, on reasonable terms, all patents, patent
applications, trademarks, service marks, trade and service ▇▇▇▇
registrations, trade names, licenses, copyrights, 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, and as described in the
Prospectuses, except where the failure to so own, possess, license or have
other rights to use would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole, whether
or not arising from the ordinary course of business. Except as set forth
in the Prospectuses under the captions "Risk Factors" or "Business -
Intellectual Property," to the Company's best knowledge, (a) there are no
rights of third parties to any such Intellectual Property; (b) there is no
material unauthorized use, infringement or misappropriation by third
parties of any such Intellectual Property; (c) there is no pending or
threatened action, suit, proceeding or claim by others 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 others 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 right of others in any Intellectual Property, and the Company
is unaware of any other fact which would form a reasonable basis for any
such claim; and (f) there is no prior art of which the Company is aware
that may render any U.S. patent held by the Company invalid or any U.S.
patent application held by the Company unpatentable which has not been
disclosed to the U.S. Patent and Trademark Office, in the case of any of
(a) through (f) above, which would have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole, whether
or not arising from the ordinary course of business.
(cc) Each of the Company and the Subsidiaries have implemented a
comprehensive, detailed program to analyze and address the risk that the
computer hardware and software used by them may be unable to operate
correctly with respect to calendar dates falling on or after January 1,
2000 in the same manner, and with the same functionality, as with respect
to calendar dates falling on or before December 31, 1999 (the "Year 2000
Problem"), and the Company and each of the Subsidiaries reasonably
believes that such program will address the Year 2000 Problem with respect
to the material operations of the Company on a timely basis and will not
have a material adverse effect upon the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and
the Subsidiaries, taken as a whole.
11
12
(dd) The Company has filed all Singapore, U.S., foreign, federal,
state and local 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 on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and
the Subsidiaries, 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) and
has paid all taxes required to be paid by it and any other assessment,
fine or penalty levied against it, 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 on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and the Subsidiaries,
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).
(ee) No Underwriter or holder of Securities is or will be deemed to
be 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.
(ff) Each of the Company and the Subsidiaries maintain 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 U.S.
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
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
[(gg) 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 Share Program, and that (ii) no authorization, approval,
consent, license, order, registration or qualification of or with any
government, governmental instrumentality or court, other than such as have
been obtained, is necessary under the securities laws and regulations of
foreign jurisdictions in which the Directed Shares are offered outside the
United States.]
(hh) The Company and the Subsidiaries are (i) in compliance with any
and all Singapore, U.S., foreign, federal, state and local 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") applicable to conduct their respective
businesses, (ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct
12
13
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 change in the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and the Subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in the Prospectuses (exclusive of
any supplement thereto).
(ii) Each of the Company and the Subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement Income Security Act of 1974
("ERISA") and the regulations and published interpretations thereunder
with respect to each "plan" (as defined in Section 3(3) of ERISA and such
regulations and published interpretations) in which employees of the
Company and the Subsidiaries are eligible to participate (other than any
"multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA)
and each such plan (other than any "multiemployer plan" within the meaning
of Section 4001(a)(3) of ERISA) is in compliance in all material respects
with the presently applicable provisions of ERISA and the United States
Internal Federal Revenue Code of 1986, as amended and such regulations and
published interpretations, except where such failure to fulfill or such
non-compliance 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
Subsidiaries, taken as a whole. The Company and the Subsidiaries have not
incurred any unpaid liability to the Pension Benefit Guaranty Corporation
(other than for the payment of premiums in the ordinary course) or to any
such plan under Title IV of ERISA, except such as 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 Subsidiaries, taken as a whole.
(jj) The Subsidiaries are the only significant subsidiaries of the
Company as defined by Rule 1.02 of Regulation S-X.
(kk) [Intentionally Omitted]
Any certificate signed by any officer of the Company or any of the
Subsidiaries, in his or her capacity as an officer of the Company or any
of the Subsidiaries, and delivered to you or counsel for the U.S.
Underwriters in connection with this U.S. Underwriting Agreement shall be
deemed to be a representation and warranty by the Company to each U.S.
Underwriter as to the matters covered thereby.
2. Purchase and Sale.
13
14
(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 agrees to sell to each U.S. Underwriter, and each
U.S. Underwriter agrees, severally and not jointly, to purchase from the
Company, at a purchase price of US$[ ] per ADS and US$[ ] per Ordinary
Share (which has been determined by converting the equity price in
Singapore dollars per Ordinary Share to U.S. dollars according to the
exchange rate set forth in [ ] on the date
hereof), the amount of U.S. Underwritten Shares set forth opposite such
U.S. Underwriter's name in Schedule I to this U.S. Underwriting Agreement.
(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 22,500,000 U.S.
Option Securities at the same purchase price per ADS and per Ordinary
Share as the U.S. Underwriters shall pay for the U.S. Underwritten
Securities. Said option may be exercised to cover overallotments 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 Prospectuses upon
written or telegraphic 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 fifth
Business Day prior to the Closing Date) shall be made at 10:00 AM, New York City
time, on [ ], 1999, or such later date not later than five Business Days after
the foregoing date as the U.S. Representatives shall designate, which date and
time may be postponed by agreement among the U.S. Representatives and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the U.S. Securities being herein 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, or if the U.S. Underwriters so elect, to the Depositary or its
nominee pursuant to the Deposit Agreement, in either case, against payment by
the several U.S. Underwriters through the U.S. Representatives of the respective
aggregate purchase prices 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 to the
accounts specified by the Company. Delivery of the ADRs representing U.S.
Underwritten Securities and the U.S. Option Securities shall be made through the
facilities of The Depository Trust Company unless the U.S. Representatives shall
otherwise instruct at least one Business Day in advance of the Closing Date.
ADRs representing the U.S. Securities and any U.S. Shares not delivered to the
Depositary or its nominee pursuant to the Deposit Agreement shall be registered
in such names and in such denominations as
14
15
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney") may request not less than two
Business Days in advance of the 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 Management and 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 Management and Underwriting Agreement
for any International Option Securities and Singapore Option Securities
occurring after the Closing Date.
If the option provided for in Section 2(b) hereof is exercised after
the fifth Business Day prior to the Closing Date, the Company will deliver (at
the expense of the Company) to the U.S. Representatives, c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the date specified
by the U.S. Representatives (which shall be within five Business Days after
exercise of said option), ADRs representing the U.S. Option Securities and any
U.S. Option Shares not delivered to the Depositary or its nominee pursuant to
the Deposit Agreement in such names and denominations as the U.S.
Representatives shall have requested 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 of U.S. dollars 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 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.
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 Prospectuses.
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
15
16
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 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 suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order 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 supplemental U.S. Prospectus to you in such quantities
as you may reasonably request.
(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 and the Subsidiaries 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
16
17
(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 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 as the U.S.
Representatives may 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) Except pursuant to the Underwriting Agreements, the Company will
not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney offer,
sell, contract to sell, pledge, or otherwise dispose of, (or enter into
any transaction which 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 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 and may file a Form
S-8 with respect thereto.
(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 fees and expenses of its counsel (including
local counsel) and accountants in connection with the issue of the
Securities, (ii) the preparation, printing or reproduction and filing with
the Commission of the Registration Statement and the ADR Registration
Statement (including financial statements and exhibits thereto), each
Preliminary Prospectus, each Prospectus, and each amendment or supplement
to any of them and mailing and delivering (including postage, air freight
charges and charges for counting and packing) copies thereof to the
initial purchasers and dealers; (iii) the preparation of the Deposit
Agreement, the deposit of the underlying Ordinary Shares under the Deposit
Agreement, the issuance thereunder of ADSs representing such deposited
Ordinary Shares, the issuance of ADRs evidencing such ADSs and the fees of
17
18
the Depositary; (iv) all expenses relating to the road show for the
offering of the Securities, including the transportation and other
expenses incurred by or on behalf of Company representatives in connection
with presentations to prospective purchasers of the Securities; (v) 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; (vi) the
registration of the Securities under the Exchange Act and the listing of
the Ordinary Shares and the ADSs on the SES and The Nasdaq National
Market, Inc., respectively; (vii) any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD") (including
filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (viii) the fees and expenses of
the Authorized Agent (as defined in Section 15 hereof); (ix) the cost and
charges of any transfer agent or registrar; and (x) all other costs and
expenses incident to the performance by the Company of its obligations
under the Underwriting Agreements.
(i) Each U.S. Underwriter agrees that (i) it is not purchasing any
of the U.S. Securities for the account of anyone other than a United
States or Canadian Person, (ii) 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
(iii) 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 among the International Underwriters, the U.S.
Underwriters and the Singapore Underwriters 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (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.
[(j) The Company agrees that, in connection with the Directed Share
Program, the Company will ensure that the Directed Shares will be
restricted to the extent required by the NASD or the NASD rules from sale,
transfer, assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration Statement.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney will notify the Company in writing as to which
Participants will need to be so restricted. The Company will direct the
removal of the transfer restrictions upon the expiration of such period of
time.]
(k) The Company covenants with ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ that the Company
will comply with all applicable securities and other applicable laws,
rules and regulations
18
19
in each foreign jurisdiction in which the Directed Shares are offered in
connection with the Directed Share Program.
(II) The agreements of the U.S. Underwriters set forth in paragraph
(I)(i) of this Section 5 shall terminate upon the earlier of the following
events:
[(a) a mutual agreement of the U.S. Representatives and the
International Representatives to terminate the selling restrictions set
forth in paragraph I(i) of this Section 5 and paragraph I(i) of Section 5
of the International Underwriting Agreement; or]
(b) the expiration of a period of 30 days after the Closing Date,
unless (i) 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 (ii) 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 (iii) the Singapore Representatives shall have given
notice to the Company, the U.S. Representatives and the International
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 or the International Representatives or the Singapore
Representatives is given, the agreements set forth in such paragraph I(i)
shall survive until the earlier of (1) the event referred to in clause (a)
of this subsection (II) 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 and 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 and the International 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 New York City time 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
19
20
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 ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
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.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than Singapore, the
State of New York laws, to the extent they deem proper and specified in such
opinion, upon the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and (B) as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of the
Company and public officials. References to the Prospectuses in this paragraph
(b) include any supplements thereto at the Closing Date.
(c) The Company shall have furnished to the Representatives the
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, United States counsel for the Company, dated
the Closing Date substantially in the form of Appendix B.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Prospectuses in this
paragraph (c) include any supplements thereto at the Closing Date.
(d) The Depositary shall have requested and caused Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, counsel for the Depositary, to have furnished to
the Representatives their opinion dated the Closing Date and addressed to
the Representatives stating in effect 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); the statements in
the Prospectuses under the heading "Description of American
Depositary Shares", insofar as such statements purport to describe
the Depositary and summarize certain provisions of the Deposit
Agreement, the ADSs and the ADRs are fair and accurate;
(ii) the Depositary has full power and authority and legal
right to execute and deliver the Deposit Agreement and to perform
its obligations thereunder;
(iii) upon due issuance and delivery by the Depositary of the
ADRs evidencing the ADSs against the deposit of the Shares in
accordance with the
20
21
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
(iv) the ADR Registration Statement has become effective under
the Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the ADR Registration Statement has
been issued, no proceedings for that purpose have been instituted or
threatened, and the ADR Registration Statement, and each amendment
comply as to form in all material respects with the applicable
requirements of the Act and the rules thereunder.
(e) The Representatives shall have received from Cleary, Gottlieb,
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 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 U.S. 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.
(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 carefully 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), earnings, business or properties of the
Company and the Subsidiaries, 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 at the Execution Time and at the Closing
Date a letter or letters,
21
22
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 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
Subsidiaries; their limited review, in accordance with United States
generally accepted auditing standards under Statement on Auditing
Standards No. 71 of the nine-month period ended September 30, 1999,
and as at September 30, 1999; carrying out certain specified
procedures (but not an examination in accordance with U.S. GAAP)
which would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of the
minutes of the meetings of the shareholders, Board of Directors and
Audit Committee of the Company and each of the Subsidiaries; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company
and each of the Subsidiaries as to transactions and events
subsequent to June 30, 1999, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements included in the
Registration Statement and the Prospectuses do not comply as
to form in all material respects with the applicable
accounting requirements of the Act and with the related rules
and regulations adopted by the Commission with respect to
registration statements on Form F-1; and said unaudited
financial statements are not in conformity with generally
accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included in the Registration Statement and the
Prospectuses;
(2) with respect to the period subsequent to September 30,
1999, there were any changes, at a specified date not more
than five Business Days prior to the date of the letter, in
the capital stock of the Company (except as disclosed in the
Prospectuses under the caption "Capitalization") or increase
in long-term debt of the Company and the Subsidiaries or any
decrease in the consolidated net current assets or
shareholders' equity of the Company and the Subsidiaries as
compared with the amounts shown on the September 30, 1999
unaudited condensed consolidated balance sheet, or for the
period from October 1, 1999 to October [ ], 1999 there were
any decrease, as compared with the corresponding period in the
preceding year, in total revenue, consolidated net sales or in
total or per share amounts of consolidated net income of the
Company and the
22
23
Subsidiaries, 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; or
(3) 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; and
(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 derived from the general
accounting records of the Company and the Subsidiaries set forth in
the Registration Statement and the Prospectuses, including the
information set forth under the captions "Prospectus Summary," "Risk
Factors," "Capitalization," "Dilution," "Selected Financial Data,"
"Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Business," "Principal Shareholders,"
"Relationship with Singapore Technologies" and "Management," agrees
with the accounting records of the Company and the Subsidiaries,
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, business or
properties of the Company and the Subsidiaries, 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 (inclusive 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 Representatives,
so material and adverse as to make it impractical or inadvisable to
proceed with the offering or delivery of the 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 officer and director of the Company and each shareholder of the
Company listed in Schedule II hereto.
(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.
23
24
(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 Ordinary
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 shall reasonably request.
(l) The closing of the purchase of the International Underwritten
Securities and the Singapore Underwritten Securities to be issued and sold
by the Company pursuant to the International Underwriting Agreement and
the Singapore Management and Underwriting Agreement, respectively, shall
occur substantially concurrently (giving effect to the time difference
between New York and Singapore) 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 SES, and the ADSs shall have been included
for quotation on The Nasdaq National Market, Inc., 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.
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 hereunder 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 will be
delivered at the offices of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing
Date.
24
25
7. Commissions, Costs and Expenses. In consideration of the
agreement by the U.S. Underwriters to subscribe for the U.S. Underwritten Shares
and the U.S. Option Shares (subject to the option for the U.S. Option Shares
referred to in the preamble above being duly exercised in accordance with
Section 3 of this U.S. Underwriting Agreement), the Company shall pay to the
U.S. Underwriters on the Closing Date, or on the date on which such Option
Securities are purchased, as the case may be, a combined management and
underwriting commission of [ ]% per cent of the principal amount of the U.S.
Underwritten Shares or the U.S. Option Shares, as the case may be.
8. Reimbursement of Underwriters' Expenses. The Company has agreed
to reimburse the Underwriters severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney 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 (including all fees and disbursements of
counsel and any stamp duties, similar taxes or duties or other taxes, if any,
incurred by the Underwriters in connection with the Directed Share Program) up
to an aggregate maximum of $500,000. In addition, if the sale of the Securities
provided for under the Underwriting Agreements is not consummated because any
condition to the obligations of the U.S. Underwriters or the International
Underwriters set forth in Section 6 of the Underwriting Agreements is not
satisfied, because of any termination pursuant to Section 11 of the Underwriting
Agreements or because of any refusal, inability or failure on the part of the
Company to perform any agreement under the Underwriting Agreements or comply
with any provision of the Underwriting Agreements other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
reasonably incurred by them in connection with the proposed purchase and sale of
the Securities, up to an aggregate maximum of $500,000.
9. 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 originally filed or in any amendment thereof, or in the ADR
Registration Statement as originally filed in any amendment thereof, or in
any U.S. or International Preliminary Prospectus or in either 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
25
26
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
9(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 ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney and each person, if any, who controls ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ within
the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act ("▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Entities") 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 outside of Singapore in connection
with the Directed Share 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, 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 Share
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 from the bad faith or gross negligence of any ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Entities.
(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, and each person who controls the Company within the meaning of
either the Act or 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 documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability
which any U.S. Underwriter may otherwise have. The Company acknowledges
that (A) the names of the Underwriters contained in any U.S. Prospectus or
International Prospectus or the Prospectuses and their
26
27
respective participation in the sale of the Securities as set forth in the
two charts under the heading "Underwriting" in any U.S. or International
Prospectus or the Prospectuses, (B) the statements set forth in the last
paragraph on the front cover page of any U.S. or International Prospectus
regarding delivery of the Securities (and the ADSs representing such
Securities) and (C) the statements set forth in the seventh, tenth and
sixteenth paragraphs under the heading "Underwriting" in any U.S. or
International Preliminary Prospectus and the Prospectuses constitute the
only information furnished in writing by or on behalf of the several U.S.
Underwriters for inclusion in any U.S. or International Preliminary
Prospectus or the Prospectuses.
(d) Promptly after receipt by an indemnified party under this
Section 9 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 9, 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), (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 reasonably
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 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ for the defense of
any losses, claims, damages and liabilities arising out of the Directed
Share 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
27
28
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney. 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 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 9 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 and by the U.S.
Underwriters 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 hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the U.S.
Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the U.S. Underwriters 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 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 or the U.S. Underwriters, 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.
For purposes of this Section 9, each person who controls an U.S.
Underwriter within the meaning of either the Act or the Exchange Act and
each
28
29
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 and the ADR Registration Statement 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).
10. Default by an 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 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 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
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 10, 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 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.
11. 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 prior to such time (i) trading in the Company's ADSs shall have been
suspended by the Commission or the Nasdaq National Market, Inc., trading in the
Company's Ordinary Shares shall have been suspended by the SES, trading in
securities generally on the New York Stock Exchange, The Nasdaq National Market,
Inc. or the SES shall have been suspended or limited or minimum prices shall
have been established on such exchange or The Nasdaq National Market, Inc., (ii)
a banking moratorium shall have been declared either 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, impracticable or
inadvisable to proceed with the offering or delivery of the prospectus as
contemplated by the U.S. Prospectus (exclusive of any supplement thereto).
29
30
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the U.S. Underwriters set forth in or made
pursuant to this 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 9
hereof, and will survive delivery of and payment for the U.S. Securities. The
provisions of Sections 8 and 9 hereof shall survive the termination or
cancellation of this U.S. Underwriting Agreement.
13. 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 c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Inc. General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇ and confirmed to such
General Counsel at ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, U.S.A., Attention: General Counsel; or, if sent to the Company,
will be mailed, delivered or telefaxed to [ ] and confirmed to it at ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Attention: Legal
Department.
14. 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 9 hereof, and no other person will have any right or obligation under
this U.S. Underwriting Agreement.
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 accepts and
submits to the non-exclusive jurisdiction of such courts in any suit, action or
proceeding. The Company has appointed [ ] 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 Agreement or the transactions
contemplated herein which may be instituted in any New York 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 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 Agreement may be instituted 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, in any other court of competent
jurisdiction, including those in Singapore.
The provisions of this Section 15 shall survive any termination of
the U.S. Underwriting Agreement, in whole or in part.
30
31
16. 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.
17. 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 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 Company
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 Company
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.
18. 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 Agreement.
19. 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.
20. Headings. The section headings used in this U.S. Underwriting
Agreement are for convenience only and shall not affect the construction hereof.
21. 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" shall mean the certificate(s) issued by the Depositary to
evidence the American Depositary Shares issued under the terms of the
Deposit Agreement.
"ADR Registration Statement" shall mean the registration statement
referred to in paragraph 1(c) above, including all exhibits thereto, each
as amended at the time such part of the registration statement became
effective.
31
32
"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in The City of
New York, New York and Singapore are authorized or obligated by law,
executive order or regulation to close.
"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
becomes effective.
"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 International Securities.
"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 and the
International Option Securities.
32
33
"Option Shares" shall mean the U.S. Option Shares and the
International Option Shares.
"Preliminary Prospectuses" and each "Preliminary Prospectus"
shall mean the U.S. Preliminary Prospectus and the International
Preliminary Prospectus.
"Prospectuses" and "each Prospectus" shall mean the U.S.
Prospectus and the International Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(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 and the
International Representatives.
"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) hereof.
"Securities" shall mean the U.S. Securities and the International
Securities.
"Shares" shall mean the U.S. Shares and the International Shares.
"Singapore Management and 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.
"Singapore Underwriters" shall mean the several underwriters named
in the Singapore Underwriting Agreement.
"Subsidiary" shall mean each of Chartered Semiconductor
Manufacturing Inc. and Chartered Silicon Partners Pte Ltd.
"Underwriter" and "Underwriters" shall mean the U.S. Underwriters
and the International Underwriters.
33
34
"Underwritten Securities" shall mean the U.S. Underwritten
Securities and the International 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, 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 referred to in
paragraph 1(a) above and any preliminary prospectus with respect to the
offering of the U.S. Securities, as the case may be, included in the
Registration Statement at the Effective Date that omits Rule 430A
Information.
"U.S. Prospectus" shall mean the prospectus relating to the U.S.
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. Underwriters" shall mean the several Underwriters named in
Schedule I to the U.S. Underwriting Agreement.
"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.
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.
34
35
Very truly yours,
Chartered Semiconductor Manufacturing
Ltd
By:________________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By:_______________________________
Name:
Title:
For itself and the other several U.S.
Representatives and U.S. Underwriters
named in Schedule I
to the foregoing Agreement.
35
36
Annex A
List of Subsidiaries
Chartered Semiconductor Manufacturing, Inc.
Chartered Silicon Partners Pte Ltd
36
37
SCHEDULE I
U.S. Underwriter Number of U.S. Underwritten Shares
---------------- ----------------------------------
Total
Ordinary (in the form of
ADSs Shares Ordinary Shares)
---- -------- ----------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc...................
Credit Suisse First Boston Corporation.....
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC......................
▇▇ ▇▇▇▇▇ Securities Corporation............
SoundView Technology Group, Inc............
Total......................................
37
38
SCHEDULE II
[LIST OF SIGNATORIES TO LETTER ATTACHED AS EXHIBIT A]
38
39
EXHIBIT A
Chartered Semiconductor Manufacturing Ltd
Public Offering of Ordinary Shares
, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ International Limited
Credit Suisse First Boston Corporation
Credit Suisse First Boston (Singapore) Limited
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇ Securities Corporation
Societe Generale
SoundView Technology Group, Inc.
Overseas Union Bank Limited
▇▇▇▇▇▇▇ Ballas & Company Pte Ltd
As Representatives of the several U.S. Underwriters
and International Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed U.S. Underwriting Agreement and International Underwriting Agreement
(the "Underwriting Agreements"), between Chartered Semiconductor Manufacturing
Ltd, a corporation organized under the laws of Singapore (the "Company"), and
you as representatives of the group of U.S. and International Underwriters named
therein, relating to an underwritten public offering of ordinary shares (the
"Ordinary Shares"), of the Company, directly or in the form of American
Depositary Shares ("ADSs").
In order to induce you and the other U.S. Underwriters and
International Underwriters to enter into the Underwriting Agreements, the
undersigned will not, without the prior 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 following
the date of the Underwriting Agreements, other than
40
Directed Shares(1) (as defined in the Underwriting Agreements), or
Ordinary Shares 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, employee
or shareholder]
[Name and address of officer,
director, employee or shareholder]
----------
(1) Directed Shares are Ordinary Shares from the offering that are expected
to be subject to priority allocation to the Company's officers,
employees and business associates, directors, officers and employees of
the Company's affiliates and to certain charitable organizations in
Singapore.
40
41
APPENDIX A
[LEGAL OPINION OF ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇]
41
42
APPENDIX B
[LEGAL OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇]
42