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EXHIBIT 1.2
Chartered Semiconductor Manufacturing Ltd
75,000,000 Ordinary Shares*
directly or in the form of American Depositary Shares
(S$0.26 par value)
Each American Depository Share representing
the right to receive ten Ordinary Shares
Form of International Underwriting Agreement
London, England
___________, 1999
Salomon Brothers International Limited
Credit Suisse First Boston (Singapore) Limited
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
Socitete Generale
SoundView Technology Group, Inc.
Overseas Union Bank Limited
▇▇▇▇▇▇▇ Ballas & Company Pte Ltd
As International Representatives of the several International Underwriters
c/o Salomon Brothers International Limited
Victoria Plaza
111 Buckingham Palace Road
London SWIW OSB
ENGLAND
Ladies and Gentlemen:
Chartered Semiconductor Manufacturing Ltd, a corporation
organized under the laws of Singapore (the "Company"), proposes to sell to the
several international underwriters named in Schedule I hereto (the
"International Underwriters"), for whom you (the "International
Representatives") are acting as representatives, ordinary shares (the "Ordinary
Shares"), S$0.26
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* Plus an option to purchase from Chartered Semiconductor Manufacturing Ltd up
to 11,250,000 additional Ordinary Shares directly or in the form of American
Depositary Shares to cover overallotments.
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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 "International Underwritten Shares").
The Company also proposes to grant to the International Underwriters an option
to purchase 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").
It is understood that the Company is concurrently entering into
the U.S. Underwriting Agreement, (together with this International Underwriting
Agreement, the "Underwriting Agreements") providing for the sale by the Company
of an aggregate of 150,000,000 Ordinary Shares directly or in the form of ADSs
(said Ordinary Shares to be sold by the Company pursuant to the U.S.
Underwriting Agreement being hereinafter called the "U.S. Underwritten Shares",
and together with the International Underwritten Shares, the "Underwritten
Shares") and providing for the grant to the U.S. Underwriters of an option to
purchase from the Company 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", and the U.S. Securities together with the International 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 with the Singapore
Offering, the Company has made a listing application to 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
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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 U.S. Underwriters and the Singapore Underwriters may
purchase from the International Underwriters a portion of the International
Securities to be sold pursuant to this International Underwriting Agreement, 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 the
U.S. Underwriting Agreement and the 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
International 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 International Underwriters
listed on Schedule I other than you, the term International Representatives as
used in this International
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Underwriting Agreement shall mean you, as International Underwriters, and the
terms International Representatives and International Underwriters shall mean
either the singular or plural as the context requires. The use of the neuter in
this International Underwriting Agreement shall include the feminine and
masculine wherever appropriate.
Certain terms used in this International Underwriting Agreement
are defined in Section 21 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each International 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 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
International 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
International Underwriting Agreement) and on any date
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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 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
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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 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 the U.S. Underwriting Agreement and the International
Underwriters in accordance with this 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 the U.S. Underwriting Agreement, this 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
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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 and
binding obligation of the parties thereto. The statements in the
Prospectuses under the heading "Taxation", fairly summarize the matters
therein described.
(j) Upon deposit of the underlying International 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
International Shares will be transferred to the Depositary on behalf of
the International 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
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 International Underwriters of the
International Securities, and payment therefor in accordance with this
International Underwriting Agreement, the International Underwriters
will acquire good, marketable and valid title to such International
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 International 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)
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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 the U.S. Underwriting
Agreement, this 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 the U.S.
Underwriting Agreement, this International Underwriting Agreement, the
Singapore Management and Underwriting Agreement or the Deposit
Agreement, nor the fulfillment of the terms hereof or thereof 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 International
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.
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(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.
(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 International 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
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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
International 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.
(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
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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).
(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
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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.
(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 International 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)
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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 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 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
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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
International Underwriters in connection with this International
Underwriting Agreement shall be deemed to be a representation and
warranty by the Company to each International Underwriter as to the
matters covered thereby.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this International
Underwriting Agreement, the Company agrees to sell to each International
Underwriter, and each International 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 International
Underwritten Shares set forth opposite such International Underwriter's
name in Schedule I to this International Underwriting Agreement.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this International
Underwriting Agreement, the Company hereby grants an option to the
several International Underwriters to purchase, severally and not
jointly, up to 11,250,000 International Option Securities at the same
purchase price per ADS and per Ordinary Share as the International
Underwriters shall pay for the International Underwritten Securities.
Said option may be exercised to cover overallotments in the sale of the
International Underwritten Securities by the International 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 International
Representatives to the Company setting forth the number of shares of the
International Option Securities as to which the several
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International Underwriters are exercising the option and the settlement
date. The number of International Option Securities to be purchased by
each International Underwriter shall be the same percentage of the total
number of shares of the International Option Securities to be purchased
by the several International Underwriters as such International
Underwriter is purchasing of the International 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
International Underwritten Securities and the International 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 International Representatives
shall designate, which date and time may be postponed by agreement among the
International Representatives and the Company or as provided in Section 9 hereof
(such date and time of delivery and payment for the International Securities
being herein called in this International Underwriting Agreement, the "Closing
Date"). Delivery of the International Securities shall be made to the
International Representatives for the respective accounts of the several
International Underwriters, or if the International Underwriters so elect, to
the Depositary or its nominee pursuant to the Deposit Agreement, in either case,
against payment by the several International Underwriters through the
International Representatives of the respective aggregate purchase prices of the
International 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 International Underwritten
Securities and the International Option Securities shall be made through the
facilities of The Depository Trust Company unless the International
Representatives shall otherwise instruct at least one Business Day in advance of
the Closing Date. ADRs representing the International Securities and any
International 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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 U.S. Underwriting Agreement and
the Singapore Management and Underwriting Agreement and that the settlement date
for any International Option Securities occurring after the Closing Date, shall
occur simultaneously with the settlement date under the U.S. Underwriting
Agreement and the Singapore Management and Underwriting Agreement for any U.S.
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 International Representatives, c/o
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ at 388 Greenwich
▇▇
▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the date specified by the International
Representatives (which shall be within five Business Days after exercise of said
option), ADRs representing the International Option Securities and any
International Option Shares not delivered to the Depositary or its nominee
pursuant to the Deposit Agreement in such names and denominations as the
International Representatives shall have requested against payment by the
several International Underwriters through the International 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 International Option Securities occurs after the
Closing Date, the Company will deliver to the International Representatives on
the settlement date for the International Option Securities, and the obligation
of the International Underwriters to purchase the International 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
International Underwriters propose to offer the International Securities for
sale to the public as set forth in the Prospectuses.
5. Agreements. (I) The Company agrees with the several
International Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement and the ADR Registration Statement, if not
effective at the Execution Time, and any amendment thereof, to become
effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement or
the ADR Registration Statement or supplement to the U.S. Prospectus or
any Rule 462(b) Registration Statement unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject
to the foregoing sentence, if the Registration Statement or the ADR
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the U.S. Prospectus is otherwise required under Rule
424(b), the Company will cause the U.S. Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to
the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the U.S.
Representatives of such timely filing. The Company will promptly advise
the International 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
16
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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
International 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 Prospectuses 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 International
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 International
Representatives and counsel for the International Underwriters, without
charge, signed copies of the Registration Statement and the ADR
Registration Statement (including exhibits thereto) and to each other
International Underwriter a copy of the Registration Statement and the
ADR Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an International Underwriter or dealer may
be required by the Act, as many copies of each International Preliminary
Prospectus and International Prospectus and any supplement thereto as
the International 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 International Representatives may designate and
will maintain such qualifications in effect so long as required for the
distribution of the International 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.
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(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 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.
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(i) Each International Underwriter agrees that (i) it is not
purchasing any of the International Securities for the account of any
United States or Canadian Person, (ii) it has not offered or sold, and
will not offer or sell, directly or indirectly, any of the International
Securities or distribute any International Prospectus to any person in
the United States or Canada, or to any United States or Canadian Person,
and (iii) any dealer to whom it may sell any of the International
Securities will represent that it is not purchasing for the account of
any United States or Canadian Person and agree that it will not offer or
resell, directly or indirectly, any of the International Securities in
the United States or Canada, or to any 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 International Prospectuses or
International Preliminary Prospectuses to) persons not United States or
Canadian Persons who are investment advisors, or who otherwise exercise
investment discretion, and who are purchasing for the account of any
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 in each foreign jurisdiction in which the
Directed Shares are offered in connection with the Directed Share
Program.
(II) The agreements of the International 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 U.S. Underwriting Agreement; or]
(b) the expiration of a period of 30 days after the Closing
Date, unless (i) 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
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(ii) 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 (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 International Representatives or the U.S.
Representatives or the Singapore Representatives is given, the
agreements set forth in such paragraph (I)(i) shall survive until the
earlier of (I)(i) 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.
(III) Each International Underwriter severally represents and agrees
that:
(a) it has not offered or sold and, prior to the expiry of six
months from the closing of the offering of the International Securities,
will not offer or sell by means of any document any International
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (whether as principal or agent) for the purpose
of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities
Regulations 1995;
(b) it has complied and will comply with all applicable
provisions of the Financial Services ▇▇▇ ▇▇▇▇ with respect to anything
done by you in relation to the International Securities in, from or
otherwise involving the United Kingdom;
(c) it has only issued or passed on, and will only issue or pass
on, in the United Kingdom any document received by it in connection with
the issue of the International Securities to a person who is of a kind
described in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇
(Investment Advertisements) (Exemptions) Order 1996 (as amended), or a
person to whom such document may otherwise lawfully be issued or passed
on;
(d) it has not offered or sold and will not offer or sell,
directly or indirectly, in Japan or to or for the account of any
resident of Japan any International Securities, except (A) under an
exemption from the registration requirements of the Securities and
Exchange Law of Japan and (B) in compliance with any other applicable
requirements of Japanese law;
(e) it will send to any dealer who purchases from it any
International Securities a notice stating in substance that, by
purchasing such International Securities, the dealer represents and
agrees that it has not offered or sold, and will not offer or sell, any
of the Shares or ADSs, directly or indirectly, in Japan or to or for the
account of any resident thereof except pursuant to an exemption from the
registration requirements of the Securities and Exchange Law of Japan,
and that the dealer will send to any other dealer to whom it sells any
International Securities a notice containing substantially the same
statement as is contained in this sentence;
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(f) it has not offered or sold and will not offer or sell any
International Securities in Hong Kong by means of any document, other
than to persons whose ordinary business it is to buy or sell shares or
debentures, whether as principal or agent, except in circumstances which
do not constitute an offer to the public within the meaning of the
Companies Ordinance (Chapter 32) of Hong Kong;
(g) it has not issued and will not issue any invitation or
advertisement relating to the International Securities in Hong Kong,
except if permitted to do so by the securities law of Hong Kong or to be
disposed of in Hong Kong only to persons whose business involves the
acquisition, disposal or holding of shares whether as principal or
agent; and
(h) it has not and will not offer or sell any International
Securities or distribute any document or other material relating to the
International Securities, either directly or indirectly, to the public
or any member of the public in Singapore other than (A) to an
institutional investor or other person specified in Section 106C of the
Companies Act, Chapter 50 of Singapore, (B) to a sophisticated investor
as specified in, and in accordance with the conditions, specified in
Section 106D of the Companies Act Chapter 50 of Singapore or (C)
otherwise pursuant to, and in accordance with the conditions of, any
other provision of the Companies Act Chapter 50 of Singapore.
6. Conditions to the Obligations of the International
Underwriters. The obligations of the International Underwriters to purchase the
International Underwritten Securities and the International 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 International
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 International
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
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
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22
counsel for the Company, to have furnished to the Representatives their
opinion, to the effect set forth in the U.S. Underwriting Agreement
under Section 6(b).
(c) The Company shall have furnished to the Representatives the
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, United States counsel for the Company, to
the effect set forth in the U.S. Underwriting Agreement under Section
6(c).
(d) The Depositary shall have requested and caused Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, counsel for the Depositary, to have
furnished to the Representatives their opinion, to the effect set forth
in the U.S. Underwriting Agreement under Section 6(d).
(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 International 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).
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23
(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, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to
the Representatives, to the effect set forth in Section 6(g) of the U.S.
Underwriting Agreement.
(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.
(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 U.S. Underwritten
Securities and the Singapore Underwritten Securities to be issued and
sold by the Company pursuant to the U.S. 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
International 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
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24
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
International Underwriting Agreement and the U.S. Underwriting Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
International Underwriting Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this International Underwriting Agreement and all
obligations of the International 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.
7. Commissions, Costs and Expenses. In consideration of the
agreement by the International Underwriters to subscribe for the International
Underwritten Shares and the International Option Shares (subject to the option
for the International Option Shares referred to in the preamble above being duly
exercised in accordance with Section 3 of this International Underwriting
Agreement), the Company shall pay to the International 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 International Underwritten Shares or the
International 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 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.
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25
9. Indemnification and Contribution.
[(a) The Company agrees to indemnify and hold harmless each
International Underwriter, the directors, officers, employees and agents
of each International Underwriter and each person who controls any
International 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 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 International Underwriter through the International
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 International 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 International 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
25
26
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 International 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 International Underwriter, but only
with reference to written information relating to such International
Underwriter furnished to the Company by or on behalf of such
International Underwriter through the International 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 International 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 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 International 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
26
27
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
International Underwriters within the meaning of either Section 15 of
the Act or Section 20 of the Exchange Act. It is understood, however,
that the Company shall, in connection with any one such action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of only one separate
firm of attorneys (in addition to any local counsel) at any time for all
such Underwriters and controlling persons, which firm shall be
designated in writing by ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 International 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
International 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 International Underwriters may be subject in such proportion
as is appropriate to reflect the relative benefits received by
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the Company and by the International Underwriters from the offering of
the International Securities; provided, however, that in no case shall
any International Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the
International Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities
purchased by such International Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the Company and the International 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
International 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
International 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 International 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 International 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
International 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 director, officer, employee and agent of an
International Underwriter shall have the same rights to contribution as
such International 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 International
Underwriters shall fail to purchase and pay for any of the International
Securities agreed to be purchased by such International Underwriter or
International Underwriters under this International Underwriting Agreement and
such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining International Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of International Securities set forth opposite
their names in Schedule I hereto bears to the aggregate amount of International
Securities set forth opposite the names of all the remaining International
Underwriters) the International Securities which the defaulting International
Underwriter or International Underwriters agreed but failed to purchase;
provided, however, that in the event that
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the aggregate amount of International Securities which the defaulting
International Underwriter or International Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining International Underwriters shall have the right
to purchase all, but shall not be under any obligation to purchase any, of the
International Securities, and if such nondefaulting International Underwriters
do not purchase all the International Securities, this Agreement will terminate
without liability to any nondefaulting International Underwriter or the Company.
In the event of a default by any International Underwriter as set forth in this
Section 10, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the International 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 International Underwriter of its liability, if any, to the
Company and any nondefaulting International Underwriter for damages occasioned
by its default under this International Underwriting Agreement.
11. Termination. This International Underwriting Agreement shall
be subject to termination in the absolute discretion of the International
Representatives, by notice given to the Company prior to delivery of and payment
for the International 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
International Representatives, impracticable or inadvisable to proceed with the
offering or delivery of the prospectus as contemplated by the International
Prospectus (exclusive of any supplement thereto).
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the International 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 International 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
International Securities. The provisions of Sections 8 and 9 hereof shall
survive the termination or cancellation of this International Underwriting
Agreement.
13. Notices. All communications under this International
Underwriting Agreement will be in writing and effective only on receipt, and, if
sent to the International Representatives, will be mailed, delivered or
telefaxed c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇
and confirmed to such General Counsel at Salomon Brothers International Limited
General Counsel (fax no.:[ ]) and confirmed to such General Counsel at Salomon
Brothers International Limited, Victoria Plaza, 111 Buckingham Palace
▇▇
▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, 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 International 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 International Underwriting Agreement.
15. Jurisdiction. The Company agrees that any suit, action or
proceeding against the Company brought by any International Underwriter, by the
directors, officers, employees and agents of any International Underwriter or by
any person who controls any International Underwriter, arising out of or based
upon this International 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 International Underwriter, by the directors, officers, employees
and agents of any International Underwriter or by any person who controls any
International 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 International Underwriter, by the directors,
officers, employees and agents of any International Underwriter or by any person
who controls any International Underwriter, in any other court of competent
jurisdiction, including those in Singapore.
The provisions of this Section 15 shall survive any termination
of the International Underwriting Agreement, in whole or in part.
16. Applicable Law. This International 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 International 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 International 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,
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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 International 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 International
Underwriting Agreement are for convenience only and shall not affect the
construction hereof.
21. Definitions. The terms which follow, when used in this
International 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.
"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.
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"Exchange Act" shall mean the United States Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Execution Time" shall mean the date and time that this
International 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
this 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 this International Underwriting Agreement.
"International Underwriting Agreement" shall mean this
International Underwriting Agreement 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.
"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
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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.
"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
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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 the U.S. Underwriting
Agreement dated the date hereof 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 International Underwriters.
Very truly yours,
Chartered Semiconductor Manufacturing
Ltd
By:
Name:
Title:
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers International Limited
By:
Name:
Title:
For itself and the other several International
Representatives and International Underwriters
named in Schedule I
to the foregoing Agreement.
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Annex A
List of Subsidiaries
Chartered Semiconductor Manufacturing, Inc.
Chartered Silicon Partners Pte Ltd
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SCHEDULE I
Number of International
International Underwriter Underwritten Shares
------------------------- -----------------------
Salomon Brothers International Limited
Credit Suisse First Boston (Singapore) Limited
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
Societe Generale
SoundView Technology Group, Inc.
Overseas Union Bank Limited
▇▇▇▇▇▇▇ Ballas & Company Pte Ltd
Total
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SCHEDULE II
LIST OF SIGNATORIES TO LETTER ATTACHED AS
EXHIBIT A
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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 Directed Shares(1) (as
defined in the Underwriting Agreements), or Ordinary Shares disposed of as bona
fide gifts approved by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
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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.
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