1
EXHIBIT 1.1
EXECUTION COPY
Chartered Semiconductor Manufacturing Ltd
150,000,000 Ordinary Shares*
directly or in the form of American Depositary Shares
(S$0.26 par value)
Each American Depositary Share representing
the right to receive ten Ordinary Shares
U.S. Underwriting Agreement
New York, New York
October 28, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇ Securities Corporation
SoundView Technology Group, Inc.
As U.S. Representatives of
the several U.S. Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Ladies and Gentlemen:
Chartered Semiconductor Manufacturing Ltd, a corporation
organized under the laws of Singapore (the "Company"), proposes to sell to the
several U.S. underwriters named in Schedule I hereto (the "U.S. Underwriters"),
for whom you (the "U.S. Representatives") are acting as representatives,
ordinary shares (the "Ordinary Shares"), S$0.26 par value per share, of the
Company directly or in the form of American Depositary Shares (the "ADSs") (said
Ordinary Shares to be issued and sold by the Company being hereinafter called
the "U.S. Underwritten Shares"). The Company also proposes to grant to the U.S.
Underwriters an option to purchase up to 22,500,000 additional Ordinary Shares
directly or in the form of ADSs to cover overallotments (the "U.S. Option
Shares" and together with the U.S. Underwritten Shares, the "U.S. Shares" or the
"U.S. Securities").
It is understood that the Company is concurrently entering into
the International Underwriting Agreement (together with this U.S. Underwriting
Agreement, the "Underwriting Agreements") providing for the sale by the Company
of an aggregate of 75,000,000 Ordinary Shares directly or in the form of ADSs
(said Ordinary Shares to be sold by the Company
-----------------------
* Plus an option to purchase from Chartered Semiconductor Manufacturing
Ltd up to 22,500,000 additional Ordinary Shares directly or in the form
of American Depositary Shares to cover overallotments.
2
pursuant to the International Underwriting Agreement being hereinafter called
the "International Underwritten Shares", and together with the U.S. Underwritten
Shares, the "Underwritten Shares") and providing for the grant to the
International Underwriters of an option to purchase from the Company up to
11,250,000 additional Ordinary Shares directly or in the form of ADSs to cover
overallotments (the "International Option Shares" and together with the
International Underwritten Shares, the "International Shares" or the
"International Securities", and the International Securities together with the
U.S. Securities, the "Securities").
It is also understood that the Company is concurrently entering
into the Sinagpore Management and Underwriting Agreement, dated October 29,
1999, 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 November 4, 1999 (the "Deposit
Agreement"), to be entered into among the Company, Citibank, N.A., as depositary
(the "Depositary") and all holders from time to time of the ADSs. Upon any such
deposit of Ordinary Shares, the Depositary will issue ADSs representing the
Shares so deposited. The ADSs will be evidenced by American Depositary Receipts
(the "ADRs"). Each ADS will represent ten Ordinary Shares and each ADR may
represent any number of ADSs.
Unless the context otherwise requires, the terms "Underwritten
Securities", "Option Securities", "U.S. Underwritten Securities", "U.S. Option
Securities", "U.S. Securities", "International Underwritten Securities",
"International Option Securities", "International Securities", "Singapore
Underwritten Securities", and "Securities" shall be deemed to refer,
respectively, to Underwritten Shares, Option Shares, U.S. Underwritten Shares,
U.S. Option Shares, U.S. Shares, International Underwritten Shares,
International Option Shares, International Shares, Singapore Underwritten
Shares, and Shares, as well as, in each case, to any ADSs representing such
securities.
It is further understood and agreed that the U.S. Underwriters,
the International Underwriters and the Singapore Underwriters have entered into
an Agreement Among U.S. Underwriters, International Underwriters and Singapore
Underwriters, dated the date hereof (the "Agreement Among U.S. Underwriters,
International Underwriters and Singapore Underwriters"), pursuant to which,
among other things, the International Underwriters and the Singapore
Underwriters may purchase from the U.S. Underwriters a portion of the U.S.
Securities to be sold pursuant to this U.S. Underwriting Agreement, the U.S.
Underwriters and the Singapore Underwriters may purchase from the International
Underwriters a portion of the International Securities to be sold pursuant to
the International Underwriting Agreement and the
2
3
U.S. Underwriters and the International Underwriters may purchase from the
Singapore Underwriters a portion of the Singapore Securities to be sold pursuant
to the Singapore Management and Underwriting Agreement.
The offering of the U.S. Shares, directly or in the form of ADSs,
is referred to herein as the "U.S. Offering"; the offering of the International
Shares, directly or in the form of ADSs, is referred to herein as the
"International Offering"; together with the U.S. Offering, the "Combined
Offering"; and the offering of the Singapore Shares (which will be only in the
form of Ordinary Shares) is referred to herein as the "Singapore Offering". The
U.S. Offering, International Offering and Singapore Offering are referred to
collectively as the "Global Offering".
As part of the Global Offering contemplated by this U.S.
Underwriting Agreement, the U.S. Underwriters, the International Underwriters
and the Singapore Underwriters have agreed to reserve up to five per cent. of
the Ordinary Shares (including Ordinary Shares represented by ADSs) out of the
Global Offering for sale to the Company's employees and business associates, to
the directors, officers and employees of the Company's affiliates and to certain
charitable organizations in Singapore (collectively, "Participants"), as set
forth in the Prospectuses under the heading "Underwriting" (the "Directed Share
Program"). The Shares to be sold by the U.S. Underwriters, the International
Underwriters and the Singapore Underwriters pursuant to the Directed Share
Program (the "Directed Shares") will be sold by them at the initial public
offering price. The Directed Shares may be sold by the U.S. Underwriters, the
International Underwriters and the Singapore Underwriters among their respective
underwriting syndicates, and in such event, any commissions may be adjusted upon
agreement of the Company and the representatives of the U.S. Underwriters, the
International Underwriters and the Singapore Underwriters. Any Directed Shares
not orally confirmed for purchase by any Participants by the end of the Business
Day on which the Underwriting Agreements and the Singapore Management and
Underwriting Agreement are executed will be offered to the public by the U.S.
Underwriters, the International Underwriters and the Singapore Underwriters as
set forth in the Prospectuses and the Agreement Among U.S. Underwriters,
International Underwriters and Singapore Underwriters.
To the extent there are no additional U.S. Underwriters listed on
Schedule I other than you, the term U.S. Representatives as used in this U.S.
Underwriting Agreement shall mean you, as U.S. Underwriters, and the terms U.S.
Representatives and U.S. Underwriters shall mean either the singular or plural
as the context requires. The use of the neuter in this U.S. Underwriting
Agreement shall include the feminine and masculine wherever appropriate.
Certain terms used in this U.S. Underwriting Agreement are
defined in Section 21 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each U.S. Underwriter as set forth below in this
Section 1.
(a) The Company has filed with the Commission a registration
statement (file number 333-88397) on Form F-1, including the related
U.S. Preliminary Prospectus, for the registration under the Act of the
offering and sale of the U.S. Securities. The
3
4
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 U.S.
Representatives shall agree to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes
(beyond that contained in the latest U.S. Preliminary Prospectus) as the
Company has advised you, prior to the Execution Time, will be included
or made therein.
It is understood that two forms of prospectuses are to be used in
connection with the Combined Offering and sale of the Securities: one
form of prospectus relating to the U.S. Securities, which are to be
offered and sold to United States and Canadian Persons, and one form of
prospectus relating to the International Securities, which are to be
offered and sold to persons other than United States and Canadian
Persons. The U.S. Prospectus and the International Prospectus are
identical except for the outside front cover page and the outside back
cover page. In addition, the Singapore Prospectus will be used in
connection with the Singapore Offering.
(b) On the Effective Date, the Registration Statement did or
will, and when the U.S. Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined in this
U.S. Underwriting Agreement) and on any date on which Option Securities
are purchased, if such date is not the Closing Date (a "settlement
date"), each U.S. Prospectus (and any supplements thereto) will comply
in all material respects with the applicable requirements of the Act and
the rules thereunder; on the Effective Date and at the Execution Time,
the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements
therein not misleading; and, on the Effective Date, each Prospectus, if
not filed pursuant to Rule 424(b), did not and will not, and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date and any
settlement date, each Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations
or warranties as to the information contained in or omitted from the
Registration Statement, or the Prospectuses (or any supplement thereto),
in reliance upon and in conformity with information furnished herein or
in writing to the Company by or
4
5
on behalf of any Underwriter through the Representatives specifically
for inclusion in the Registration Statement or the Prospectuses (or any
supplement thereto). It is understood that the information that has been
furnished in writing by or on behalf of the several Underwriters for
inclusion in the Registration Statement, Preliminary Prospectuses or the
Prospectuses is limited to (A) the names of the Underwriters and their
respective participation in the sale of the Securities as set forth in
the two charts under the heading "Underwriting" in the Preliminary
Prospectuses or Propsectuses, (B) the statements set forth in the last
paragraph on the front cover page of the Preliminary Prospectuses or
Prospectuses regarding delivery of the Securities (and the ADSs
representing such Securities) and (C) the statements set forth in the
seventh, tenth and sixteenth paragraphs under the heading "Underwriting"
in the Preliminary Prospectuses or Prospectuses.
(c) The Company has filed with the Commission a registration
statement (file number 333-88623) on Form F-6 (the "ADR Registration
Statement") for the registration under the Act of the offering and sale
of the ADSs. The Company may have filed one or more amendments thereto,
each of which has previously been furnished to you. Such ADR
Registration Statement at the time of its effectiveness did or will
comply and on the Closing Date, will comply, in all material respects
with the applicable requirements of the Act and the rules thereunder and
at the time of its Effective Date and at the Execution Time, did not and
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(d) Each of the Company and the Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of
the jurisdiction in which it is incorporated with full corporate power
to own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectuses, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified or be in good
standing would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and the Subsidiaries,
taken as a whole.
(e) All the outstanding share capital of each Subsidiary has been
duly and validly authorized and issued and is fully paid and
non-assessable and, except for such shares of Chartered Silicon Partners
Pte Ltd ("CSP") as are owned by Hewlett-Packard Europe B.V., or EDB
Investments Pte Ltd which shares do not exceed 49% of the outstanding
voting shares of CSP, all the outstanding shares of capital stock of the
Subsidiaries are owned by the Company directly free and clear of any
perfected security interests, liens or encumbrances.
(f) The Company's authorized, issued and outstanding equity
capitalization is as set forth in the Prospectuses. The outstanding
Ordinary Shares have been duly and validly authorized and issued and are
fully paid and non-assessable. The Securities being sold under the
Underwriting Agreements by the Company have been duly and validly
authorized, and, when issued and delivered to the Depositary or its
nominee in accordance with the Deposit Agreement, the U.S. Underwriters
in accordance with this
5
6
U.S. Underwriting Agreement and the International Underwriters in
accordance with the International Underwriting Agreement, will be
validly issued, fully paid and non-assessable. The certificates for the
Shares and the ADRs are in valid form. The holders of outstanding shares
of capital stock of the Company are not entitled to any preemptive or
other rights to subscribe for the Shares and the Securities except for
such rights that have been effectively waived. Except as disclosed in
the Prospectuses, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock
of or ownership interests in the Company are outstanding. The Securities
are freely transferable by the Company to or for the account of the
several Underwriters, their designees and the initial purchasers
thereof, and except as set forth in the Prospectuses there are no
restrictions on subsequent transfers of the Securities under the laws of
Singapore and of the United States.
(g) The capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectuses. The
capital restructuring was approved by the Company's shareholders at an
extraordinary general meeting on October 14, 1999 (the "EGM") and has
become effective and has been completed as described in the Prospectuses
under the heading "Capitalization." The Articles of Association
described in the Prospectuses under the heading "Description of Ordinary
Shares" were adopted by the Company's shareholders at the EGM and are in
full force and effect.
(h) Each of this U.S. Underwriting Agreement, the International
Underwriting Agreement, the Singapore Management and Underwriting
Agreement and the Deposit Agreement has been duly authorized, executed
and delivered by the Company.
(i) There is no franchise, contract or other document of a
character required to be described in the Registration Statement, ADR
Registration Statement or Prospectuses, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
description of each such contract, franchise or document in the
Prospectuses is a fair description thereof in all material respects; and
each such franchise, contract or other document to which the Company is
a party, assuming due authorization, execution and delivery thereof by
all parties thereto, is enforceable against the Company in accordance
with its terms and is in full force and effect, and to the Company's
knowledge, is a legal, valid and binding obligation of the other parties
thereto. The statements in the Prospectuses under the heading
"Taxation", fairly summarize the matters therein described.
(j) Upon deposit of the underlying U.S. Shares with the
Depositary or its nominee pursuant to the Deposit Agreement in
accordance with the terms thereof, all right, title and interest in such
U.S. Shares will be transferred to the Depositary on behalf of the U.S.
Underwriters, free and clear of all pledges, liens, security interests,
charges, claims or encumbrances of any kind. Upon issuance by the
Depositary of the ADRs evidencing the ADSs against deposit of underlying
Ordinary Shares in accordance with the provisions of the Deposit
Agreement, such ADRs will be duly and validly issued and 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
6
7
the U.S. Underwriters of the U.S. Securities, and payment therefor in
accordance with this U.S. Underwriting Agreement, the U.S. Underwriters
will acquire good, marketable and valid title to such U.S. Securities
subject to the terms of the Deposit Agreement, free and clear of all
pledges, liens, security interests, charges, claims or encumbrances of
any kind, other than those arising in favor of the persons purchasing
through the U.S. Underwriters.
(k) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to the Singapore government or any political
subdivision or taxing authority thereof in connection with (A) the
execution and delivery of the Underwriting Agreements, (B) the issuance
of the Ordinary Shares or the ADSs in the manner contemplated by the
Underwriting Agreements, (C) the deposit with the Depositary of the
underlying Ordinary Shares against issuance of ADRs evidencing the ADSs,
(D) the sale and delivery of the Ordinary Shares and the ADSs to the
Underwriters, or (E) except as disclosed in the Prospectuses under the
heading "Taxation--Singapore Taxation", the resale and delivery of such
Ordinary Shares and ADSs by the U.S. Underwriters or the International
Underwriters in the manner contemplated in the Prospectuses.
(l) Except as described in the Prospectuses, all dividends and
other distributions declared and payable on the Ordinary Shares may
under current Singapore law and regulations be paid to the Depositary
and to the holders of Securities, as the case may be, in Singapore
dollars and may be converted into foreign currency that may be
transferred out of Singapore in accordance with the Deposit Agreement.
(m) No consent, approval (including exchange control approval),
authorization, filing with or order of any court or governmental or
regulatory agency or body is required under Singapore or U.S. federal
law or the laws of any state or political subdivision thereof in
connection with the transactions contemplated in this U.S. Underwriting
Agreement, the International Underwriting Agreement, the Singapore
Management and Underwriting Agreement and the Deposit Agreement, except
such as have been obtained under the Act, the Exchange Act, the
Companies Act, Chapter 50 of Singapore, and such as may be required
under the blue sky or similar laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the Underwriters
in the manner contemplated in the Underwriting Agreements and the
Prospectuses except as may be required pursuant to the National
Association of Securities Dealers, Inc. rules, The Nasdaq Stock Market,
Inc. rules or the letter from the SES dated September 15, 1999 granting
approval in principle for the listing and quotation of the entire issued
and share capital of the Company on the Main Board of the SES, as have
been obtained.
(n) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions contemplated in this U.S.
Underwriting Agreement, the International Underwriting Agreement, the
Singapore Management and Underwriting Agreement or the Deposit
Agreement, nor the fulfillment of the terms hereof or thereof 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
7
8
pursuant to, (i) the memorandum and articles of association of
the Company or the constituent documents of any of the Subsidiaries,
(ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement, permit, license, franchise or
other agreement, obligation, condition, covenant or instrument to which
the Company or any of the Subsidiaries is a party or bound or to which
its or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any
of the Subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of the Subsidiaries or any of its
or their properties, except, with respect to clause (ii) or (iii) above,
such as would not individually or in the aggregate, have a material
adverse effect on (A) the performance of this U.S. Underwriting
Agreement or the consummation of any of the transactions contemplated
herein or (B) the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and the Subsidiaries,
taken as a whole.
(o) The Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Prospectuses, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(p) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement or the
ADR Registration Statement except for such rights that have been
effectively waived.
(q) The consolidated historical financial statements and
schedules of the Company and the Subsidiaries (including the related
notes) included in the Registration Statement and the Prospectuses
present fairly in all material respects the financial condition, results
of operations, changes in financial position and cash flows as of the
dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been prepared in
conformity with United States generally accepted accounting principles
("U.S. GAAP") applied on a consistent basis throughout the periods
indicated (except as otherwise noted therein). The summary and selected
financial data included in the Registration Statement and the
Prospectuses fairly present in all material respects, on the basis
stated in the Registration Statement and the Prospectuses, the
information included therein. The pro forma financial statements
included in the Prospectuses and the Registration Statement include
assumptions that provide a reasonable basis for presenting the
significant effects directly attributable to the transactions and the
events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma adjustments
reflect proper application of those adjustments to the historical
financial statement amounts in the pro forma financial statements
included in the Prospectuses and the Registration Statement. The pro
forma financial statements included in the Prospectuses and the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of Regulation S-X under the Act
and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of those statements.
8
9
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of the Subsidiaries or its or their property is pending
or, to the knowledge of the Company, threatened that (i) could
reasonably be expected to have a material adverse effect on the
performance of this U.S. Underwriting Agreement or the consummation of
any of the transactions contemplated hereby or (ii) could reasonably be
expected to have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the
Company and the Subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set
forth or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(s) Each of the Company and the Subsidiaries owns or leases all
such properties as are necessary to the conduct of its operations as
presently conducted. Any real property and buildings held under lease by
the Company or any of the Subsidiaries are held under valid, subsisting
and enforceable leases, with such exceptions as are not material and do
not interfere with the use made or proposed to be made of such property
and buildings by the Company or any of the Subsidiaries, in each case
except as described in or contemplated in the Prospectuses.
(t) Neither the Company nor any of the Subsidiaries is in
violation or default of (i) any provision of its Memorandum and Articles
of Association or other constituent documents, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of the Subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
any of the Subsidiaries or any of its or their properties, except, with
respect to clause (ii) or (iii) above, such as would not individually or
in the aggregate, have a material adverse effect on (A) the performance
of this U.S. Underwriting Agreement or the consummation of any of the
transactions contemplated herein or (B) the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole.
(u) KPMG Peat Marwick ("KPMG"), who have certified certain
financial statements of the Company and the Subsidiaries and delivered
their report with respect to the audited consolidated financial
statements and schedules included in the Registration Statement and the
Prospectuses, are independent public accountants with respect to the
Company within the meaning of the Act and the applicable published rules
and regulations thereunder.
(v) The Company has not taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities, provided, however, that this provision shall not apply to
any trading or stabilization activities conducted by the Underwriters.
9
10
(w) Each of the Company and the Subsidiaries possesses all
licenses, permits, certificates and other authorizations issued by the
appropriate Singapore, U.S., foreign, federal, state or local regulatory
authorities necessary to conduct its business as currently conducted,
except in any case in which the failure so to possess any such license,
permit, certificate or other authorization would not, individually or in
the aggregate, have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole. Neither the Company
nor any of the Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such license, permit,
certificate or authorization which, singly or in the aggregate, if the
subject of an unfavorable decision ruling or findings, would have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in the
Prospectuses (exclusive of any supplement thereto).
(x) Except as described in the Prospectuses, for the periods
described in the Prospectuses, the Company has no material capital
commitments.
(y) No labor dispute with the employees of the Company or any of
the Subsidiaries exists or to the Company's best knowledge, is
threatened, and the Company is not aware of any existing labor
disturbance by the employees of any of its or any of the Subsidiaries',
that could have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(z) Each of the Company and the Subsidiaries is insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses
in which it is engaged. All policies of insurance insuring the Company
or any of the Subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect; each of
the Company and the Subsidiaries is in compliance with the terms of such
policies and instruments in all material respects; and there are no
claims by the Company or any of the Subsidiaries under any such policy
or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause. Neither the Company nor
any of the Subsidiaries has been refused any insurance coverage sought
or applied for. The Company has no reason to believe that either the
Company or any of the Subsidiaries will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto).
10
11
(aa) None of the Company's Subsidiaries is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on its capital stock, from repaying to the
Company any loans or advances to it from the Company or from
transferring any of its property or assets to the Company or the other
Subsidiary, except for certain restrictions as set forth in the Joint
Venture Agreement dated July 4, 1997 by and among the Company,
Hewlett-Packard Europe B.V. and EDB Investments Pte Ltd (as amended) or
as described in or contemplated in the Prospectuses.
(bb) The Company and the Subsidiaries own, possess, license or
have other rights to use, on reasonable terms, all patents, patent
applications, trademarks, service marks, trade and service ▇▇▇▇
registrations, trade names, licenses, copyrights, inventions, trade
secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct of
the Company's business as now conducted, and as described in the
Prospectuses, except where the failure to so own, possess, license or
have other rights to use would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from the ordinary course of business. Except as
set forth in the Prospectuses under the captions "Risk Factors" or
"Business - Intellectual Property," to the Company's best knowledge, (a)
there are no rights of third parties to any such Intellectual Property;
(b) there is no material infringement by third parties of any such
Intellectual Property; (c) there is no pending or threatened action,
suit, proceeding or claim by others challenging the Company's rights in
or to any such Intellectual Property, and the Company is unaware of any
facts which would form a reasonable basis for any such claim; (d) there
is no pending or threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property, and
the Company is unaware of any facts which would form a reasonable basis
for any such claim; (e) there is no pending or threatened action, suit,
proceeding or claim by others that the Company infringes or otherwise
violates any patent, trademark, copyright, trade secret or other
proprietary right of others in any Intellectual Property, and the
Company is unaware of any other fact which would form a reasonable basis
for any such claim; and (f) there is no prior art of which the Company
is aware that may render any U.S. patent held by the Company invalid or
any U.S. patent application held by the Company unpatentable which has
not been disclosed to the U.S. Patent and Trademark Office, in the case
of any of (a) through (f) above, which would have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from the ordinary course of business.
(cc) Each of the Company and the Subsidiaries have implemented a
comprehensive, detailed program to analyze and address the risk that the
computer hardware and software used by them may be unable to operate
correctly with respect to calendar dates falling on or after January 1,
2000 in the same manner, and with the same functionality, as with
respect to calendar dates falling on or before December 31, 1999 (the
"Year 2000 Problem"), and the Company and each of the Subsidiaries
reasonably believes that such program will address the Year 2000 Problem
with respect to the material operations of the Company on a timely basis
and will not have a material
11
12
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 U.S. Underwriting Agreement.
(ff) Each of the Company and the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with U.S. generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(gg) The Company represents and warrants that (i) the
Registration Statement, the ADR Registration Statement, the Prospectuses
and the Preliminary Prospectuses comply, and any further amendments or
supplements thereto will comply, with any applicable laws or regulations
of foreign jurisdictions in which the Prospectuses or Preliminary
Prospectuses, as amended or supplemented, if applicable, are distributed
in connection with the Directed Share Program, and that (ii) no
authorization, approval, consent, license, order, registration or
qualification of or with any government, governmental instrumentality or
court, other than such as have been obtained, is necessary under the
securities laws and regulations of foreign jurisdictions in which the
Directed Shares are offered outside the United States.
(hh) The Company and the Subsidiaries are (i) in compliance with
any and all Singapore laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants
12
13
("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 "multi-employer plan" within the meaning of Section 4001(a)(3) of
ERISA) and each such plan (other than any "multi-employer 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 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.
Any certificate signed by any officer of the Company or any of
the Subsidiaries, in his or her capacity as an officer of the Company or
any of the Subsidiaries, and delivered to you or counsel for the U.S.
Underwriters in connection with this U.S. Underwriting Agreement shall
be deemed to be a representation and warranty by the Company to each
U.S.
Underwriter as to the matters covered thereby.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this U.S. Underwriting
Agreement, the Company agrees to sell to each U.S. Underwriter, and each
U.S. Underwriter agrees,
13
14
severally and not jointly, to purchase from the Company, at a purchase
price of US$20.00 per ADS and S$3.344 per Ordinary Share, the amount of
U.S. Underwritten Shares set forth opposite such U.S. Underwriter's name
in Schedule I to this U.S. Underwriting Agreement.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this U.S. Underwriting
Agreement, the Company hereby grants an option to the several U.S.
Underwriters to purchase, severally and not jointly, up to 22,500,000
U.S. Option Securities at the same purchase price per ADS and per
Ordinary Share as the U.S. Underwriters shall pay for the U.S.
Underwritten Securities. Said option may be exercised to cover
overallotments in the sale of the U.S. Underwritten Securities by the
U.S. Underwriters. Said option may be exercised in whole or in part at
any time (but not more than once) on or before the 30th day after the
date of the Prospectuses upon written or telegraphic notice by the U.S.
Representatives to the Company setting forth the number of shares of the
U.S. Option Securities as to which the several U.S. Underwriters are
exercising the option and the settlement date. The number of U.S. Option
Securities to be purchased by each U.S. Underwriter shall be the same
percentage of the total number of shares of the U.S. Option Securities
to be purchased by the several U.S. Underwriters as such U.S.
Underwriter is purchasing of the U.S. Underwritten Securities, subject
to such adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the U.S.
Underwritten Securities and the U.S. Option Securities (if the option provided
for in Section 2(b) hereof shall have been exercised on or before the fifth
Business Day prior to the Closing Date) shall be made at 9:00 AM, New York City
time, on November 4, 1999, or such later date not later than five Business Days
after the foregoing date as the U.S. Representatives shall designate, which date
and time may be postponed by agreement among the U.S. Representatives and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the U.S. Securities being herein called in this U.S. Underwriting
Agreement, the "Closing Date"). Delivery of the U.S. Securities shall be made to
the U.S. Representatives for the respective accounts of the several U.S.
Underwriters, or if the U.S. Underwriters so elect, to the Depositary or its
nominee pursuant to the Deposit Agreement, in either case, against payment by
the several U.S. Underwriters through the U.S. Representatives of the respective
aggregate purchase prices of the U.S. Securities being sold by the Company to or
upon the order of the Company by wire transfer payable in same day funds to the
accounts specified by the Company. Delivery of the ADRs representing U.S.
Underwritten Securities and the U.S. Option Securities shall be made through the
facilities of The Depository Trust Company unless the U.S. Representatives shall
otherwise instruct at least one Business Day in advance of the Closing Date.
ADRs representing the U.S. Securities and any U.S. Shares not delivered to the
Depositary or its nominee pursuant to the Deposit Agreement shall be registered
in such names and in such denominations as ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("▇▇▇▇▇▇▇
▇▇▇▇▇ Barney") may request not less than two Business Days in advance of the
Closing Date.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the International Underwriting
Agreement and the Singapore Management and Underwriting Agreement and that the
settlement date for any U.S. Option
14
15
Securities occurring after the Closing Date, shall occur simultaneously with the
settlement date under the International Underwriting Agreement and the Singapore
Management and Underwriting Agreement for any International Option Securities
and Singapore Option Securities occurring after the Closing Date.
If the option provided for in Section 2(b) hereof is exercised
after the fifth Business Day prior to the Closing Date, the Company will deliver
(at the expense of the Company) to the U.S. Representatives, c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the date specified
by the U.S. Representatives (which shall be within five Business Days after
exercise of said option), ADRs representing the U.S. Option Securities and any
U.S. Option Shares not delivered to the Depositary or its nominee pursuant to
the Deposit Agreement in such names and denominations as the U.S.
Representatives shall have requested against payment by the several U.S.
Underwriters through the U.S. Representatives of the purchase price thereof to
or upon the order of the Company by wire transfer of U.S. dollars and payable in
same day funds to the accounts specified by the Company. If settlement for the
U.S. Option Securities occurs after the Closing Date, the Company will deliver
to the U.S. Representatives on the settlement date for the U.S. Option
Securities, and the obligation of the U.S. Underwriters to purchase the U.S.
Option Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
U.S. Underwriters propose to offer the U.S. Securities for sale to the public as
set forth in the Prospectuses.
5. Agreements. (I) The Company agrees with the several U.S.
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement and the ADR Registration Statement, if not
effective at the Execution Time, and any amendment thereof, to become
effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement or
the ADR Registration Statement or supplement to the U.S. Prospectus or
any Rule 462(b) Registration Statement unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject
to the foregoing sentence, if the Registration Statement or the ADR
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the U.S. Prospectus is otherwise required under Rule
424(b), the Company will cause the U.S. Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to
the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the U.S.
Representatives of such timely filing. The Company will promptly advise
the U.S. Representatives (1) when the Registration Statement and the ADR
Registration Statement, if not effective at the Execution Time, shall
have become effective, (2) when the U.S. Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement
or ADR Registration Statement shall have been filed with the Commission,
(3) when,
15
16
prior to termination of the offering of the Securities, any amendment to
the Registration Statement or the ADR Registration Statement shall have
been filed or become effective, (4) of any request by the Commission or
its staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement or ADR Registration Statement, or for any
supplement to the U.S. Prospectus or for any additional information, (5)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the ADR Registration
Statement or the institution or threatening of any proceeding for that
purpose and (6) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result
of which the U.S. Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or the ADR Registration
Statement or supplement the U.S. Prospectus to comply with the Act or
the rules thereunder, the Company promptly will (1) notify the U.S.
Representatives of any such event; (2) prepare and file with the
Commission, subject to the second sentence of paragraph (i)(a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance; and (3) supply any supplemental
U.S. Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will timely file such
reports pursuant to the Exchange Act as are necessary in order to make
generally available to its security holders and to the U.S.
Representatives an earnings statement or statements covering the 12
month period ending December 31, 2000 of the Company and the
Subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 under the Act.
(d) The Company will furnish to the U.S. Representatives and
counsel for the U.S. Underwriters, without charge, signed copies of the
Registration Statement and the ADR Registration Statement (including
exhibits thereto) and to each other U.S. Underwriter a copy of the
Registration Statement and the ADR Registration Statement (without
exhibits thereto) and, so long as delivery of a prospectus by an U.S.
Underwriter or dealer may be required by the Act, as many copies of each
U.S. Preliminary Prospectus and U.S. Prospectus and any supplement
thereto as the U.S. Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
U.S. Representatives may designate and will maintain such qualifications
in effect so long as required for the distribution of the U.S.
Securities, provided, however, that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service
of process in suits, other than those
16
17
arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) Except pursuant to the Underwriting Agreements, the Company
will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
offer, sell, contract to sell, pledge, or otherwise dispose of, (or
enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by
the Company) directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any Ordinary Shares or ADSs
or any securities convertible into, or exercisable, or exchangeable for,
Ordinary Shares or ADSs; or publicly announce an intention to effect any
such transaction, for a period of 180 days after the date of the
Underwriting Agreements, provided, however, that the Company may issue
and sell Ordinary Shares pursuant to any employee stock option plan or
stock ownership plan, and may file a Form S-8 with respect thereto.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Ordinary Shares or the
ADSs.
(h) The Company agrees to pay the costs and expenses relating to
the following matters: (i) the fees and expenses of its counsel
(including local counsel) and accountants in connection with the issue
of the Securities, (ii) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement and the ADR
Registration Statement (including financial statements and exhibits
thereto), each Preliminary Prospectus, each Prospectus, and each
amendment or supplement to any of them and mailing and delivering
(including postage, air freight charges and charges for counting and
packing) copies thereof to the initial purchasers and dealers; (iii) the
preparation of the Deposit Agreement, the deposit of the underlying
Ordinary Shares under the Deposit Agreement, the issuance thereunder of
ADSs representing such deposited Ordinary Shares, the issuance of ADRs
evidencing such ADSs and the fees of 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
17
18
expenses incident to the performance by the Company of its obligations
under the Underwriting Agreements.
(i) Each U.S. Underwriter agrees that (i) it is not purchasing
any of the U.S. Securities for the account of anyone other than a United
States or Canadian Person, (ii) it has not offered or sold, and will not
offer or sell, directly or indirectly, any of the U.S. Securities or
distribute any U.S. Prospectus to any person outside the United States
or Canada, or to anyone other than a United States or Canadian Person,
and (iii) any dealer to whom it may sell any of the U.S. Securities will
represent that it is not purchasing for the account of anyone other than
a United States or Canadian Person and agree that it will not offer or
resell, directly or indirectly, any of the U.S. Securities outside the
United States or Canada, or to anyone other than a United States or
Canadian Person or to any other dealer who does not so represent and
agree; provided, however, that the foregoing shall not restrict (A)
purchases and sales among the International Underwriters, the U.S.
Underwriters and the Singapore Underwriters pursuant to the Agreement
Among U.S. Underwriters, International Underwriters and Singapore
Underwriters, (B) stabilization transactions contemplated under the
Agreement Among U.S. Underwriters, International Underwriters and
Singapore Underwriters, conducted through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (or
through the U.S. Representatives, International Representatives and
Singapore Representatives) as part of the distribution of the
Securities, and (C) sales to or through (or distributions of U.S.
Prospectuses or U.S. Preliminary Prospectuses to) United States or
Canadian Persons who are investment advisors, or who otherwise exercise
investment discretion, and who are purchasing for the account of anyone
other than a United States or Canadian Person.
(j) The Company agrees that, in connection with the Directed
Share Program, the Company will ensure that the Directed Shares will be
restricted to the extent required by the NASD or the NASD rules from
sale, transfer, assignment, pledge or hypothecation for a period of
three months following the date of the effectiveness of the Registration
Statement. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney will notify the Company in writing as to
which Participants will need to be so restricted. The Company has been
advised by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ that there are no Participants who will
need to be so restricted.
(k) The Company covenants with ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney 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 U.S. Underwriters set forth in
paragraph (I)(i) of this Section 5 shall terminate upon the earlier of the
following events:
(a) a mutual agreement of the U.S. Representatives, the
International Representatives and the Singapore Representatives to
terminate the selling restrictions set forth in paragraph (I)(i) of this
Section 5, paragraph (I)(i) of Section 5 of the International
Underwriting Agreement and Section 2(f) of the Agreement Among U.S.
Underwriters, International Underwriters and Singapore Underwriters; or
18
19
(b) the expiration of a period of 30 days after the Closing Date,
unless (i) the U.S. Representatives shall have given notice to the
Company, the International Representatives and the Singapore
Representatives that the distribution of the U.S. Securities by the U.S.
Underwriters has not yet been completed, or (ii) the International
Representatives shall have given notice to the Company, the U.S.
Representatives and the Singapore Representatives that the distribution
of the International Securities by the International Underwriters has
not yet been completed, or (iii) the Singapore Representatives shall
have given notice to the Company, the U.S. Representatives and the
International Representatives that the distribution of the Singapore
Securities by the Singapore Underwriters has not yet been completed. If
such notice by the U.S. Representatives or the International
Representatives or the Singapore Representatives is given, the
agreements set forth in such paragraph (I)(i) shall survive until the
earlier of (1) the event referred to in clause (a) of this subsection
(II) or (2) the expiration of an additional period of 30 days from the
date of any such notice.
6. Conditions to the Obligations of the U.S. Underwriters. The
obligations of the U.S. Underwriters to purchase the U.S. Underwritten
Securities and the U.S. Option Securities, as the case may be, shall be subject
to the accuracy of the representations and warranties on the part of the Company
contained in this U.S. Underwriting Agreement as of the Execution Time, the
Closing Date and any settlement date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company and made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
under this U.S. Underwriting Agreement and to the following additional
conditions:
(a) If the Registration Statement and the ADR Registration
Statement have not become effective prior to the Execution Time, unless
the U.S. Representatives and the International Representatives agree in
writing to a later time, the Registration Statement and the ADR
Registration Statement will become effective not later than (i) 6:00 PM
New York City time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 PM New York
City time on such date or (ii) 9:30 AM New York City time on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the U.S. Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the U.S. Prospectus, and
any such supplement, will be filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement or the ADR Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
Singapore counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to
the Representatives substantially in the form set forth in Appendix A.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than
Singapore, the State of New York laws, to the extent they deem proper and
specified in such opinion, upon the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
19
20
and (B) as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company and public officials. References to the
Prospectuses in this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Company shall have furnished to the Representatives the
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, United States counsel for the Company,
dated the Closing Date substantially in the form of Appendix B.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Prospectuses in this
paragraph (c) include any supplements thereto at the Closing Date.
(d) The Depositary shall have requested and caused Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, counsel for the Depositary, to have furnished to
the Representatives their opinion dated the Closing Date and addressed
to the Representatives stating in effect that:
(i) the Deposit Agreement has been duly authorized,
executed and delivered by the Depositary and constitutes a legal,
valid and binding instrument enforceable against the Depositary
in accordance with its terms, except to the extent that
enforcement thereof may be limited by (a) bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws now
or hereafter in effect relating to or affecting creditors' rights
generally and (b) general principles of equity (regardless of
whether enforcement is considered in a proceeding at law or in
equity); the statements in the Prospectuses under the heading
"Description of American Depositary Shares", insofar as such
statements purport to describe the Depositary and summarize
certain provisions of the Deposit Agreement, the ADSs and the
ADRs are fair and accurate;
(ii) the Depositary has full power and authority and legal
right to execute and deliver the Deposit Agreement and to perform
its obligations thereunder;
(iii) upon due issuance and delivery by the Depositary of
the ADRs evidencing the ADSs against the deposit of the Shares in
accordance with the terms of the Deposit Agreement, such ADRs
will be validly issued and will entitle the person in whose name
each ADR is registered to the rights specified therein and in the
Deposit Agreement; and
(iv) the ADR Registration Statement has become effective
under the Act and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the ADR Registration
Statement has been issued, no proceedings for that purpose have
been instituted or threatened, and the ADR Registration
Statement, and each amendment comply as to form in all material
respects with the applicable requirements of the Act and the
rules thereunder.
20
21
(e) The Representatives shall have received from Cleary,
Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion
or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the
Securities, the Registration Statement, the ADR Registration Statement,
the Prospectuses (together with any supplement thereto) and other
related matters as the U.S. Representatives may reasonably require, and
the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the ADR
Registration Statement, the Prospectuses, any supplements to the
Prospectuses and the Underwriting Agreements and that:
(i) the representations and warranties of the Company in
the Underwriting Agreements are true and correct in all material
respects on and as of the Closing Date with the same effect as if
made on the Closing Date and the Company has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or the ADR Registration Statement has been
issued and no proceedings for that purpose have been instituted
or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectuses (exclusive of any
supplement thereto), there has been no material adverse change in
the condition (financial or otherwise), earnings, business or
properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the
Prospectuses (exclusive of any supplement thereto).
(g) The Company shall have requested and caused KPMG to have
furnished to the Representatives at the Execution Time and at the
Closing Date a letter or letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to
the Representatives, confirming that they are independent accountants
within the meaning of the Act and the applicable rules and regulations
adopted by the Commission thereunder and stating in effect that:
(i) in their opinion the audited financial statements
included in the Registration Statement and the Prospectuses and
reported on by them comply as to form in all material respects
with the applicable accounting requirements of the Act and the
related rules and regulations adopted by the Commission;
21
22
(ii) on the basis of a reading of the latest unaudited
condensed consolidated financial statements made available by the
Company and Chartered Inc.; their limited review, in accordance
with United States generally accepted auditing standards under
Statement on Auditing Standards No. 71 of the nine-month period
ended September 30, 1999, and as at September 30, 1999; carrying
out certain specified procedures (but not an examination in
accordance with U.S. GAAP) which would not necessarily reveal
matters of significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings of the
shareholders, Board of Directors and Audit Committee of the
Company; and inquiries of certain officials of the Company who
have responsibility for financial and accounting matters of the
Company and Chartered Inc. as to transactions and events
subsequent to June 30, 1999, such Company officials advising that
no consolidated financial statements are available as of any date
or for any period subsequent to September 30, 1999, nothing came
to their attention which caused them to believe that:
(1) the unaudited condensed consolidated financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included in the Registration Statement and the
Prospectuses; or
(2) with respect to the period subsequent to September 30,
1999, there were any material changes, at a specified date
not more than five Business Days prior to the date of the
letter, in the capital stock of the Company (except as
disclosed in the Prospectuses under the caption
"Capitalization"), any material increase in long-term debt
or in consolidated net current liabilities or any material
decrease in shareholders' equity of the Company and the
Subsidiaries as compared with the amounts shown on the
September 30, 1999 unaudited condensed consolidated
balance sheet, or for the period from October 1, 1999 to
October 25, 1999 there was any material decrease, as
compared with the corresponding period in the preceding
year, in total revenue of the Company and the
Subsidiaries, excluding CSP, except in all instances for
changes, increases or decreases set forth in such letter,
in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
derived from the general accounting records of the Company and
Chartered Inc. set forth in the Registration Statement and the
Prospectuses, including the information set forth under the
captions "Prospectus Summary," "Risk Factors," "Capitalization,"
"Dilution," "Selected Financial Data," "Management's Discussion
and Analysis of Financial Condition and Results of Operations,"
"Business," "Principal Shareholders," "Relationship with
Singapore Technologies" and "Management," agrees with or is
recomputed from the
22
23
accounting records of the Company and the Subsidiaries, excluding
any questions of legal interpretation.
References to the Prospectuses in this paragraph (g) include any
supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof), and the Prospectuses (exclusive of
any supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph (g)
of this Section 6 or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Prospectuses (inclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof), the ADR
Registration Statement and the Prospectuses (exclusive of any supplement
thereto).
(i) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A
hereto from each officer and director of the Company and each
shareholder of the Company listed in Schedule II hereto.
(j) The Company and the Depositary shall have executed and
delivered the Deposit Agreement in form and substance satisfactory to
the Representatives and the Deposit Agreement shall be in full force and
effect.
(k) The Depositary shall have furnished or caused to be furnished
to the Representatives certificates satisfactory to the Representatives
evidencing the deposit with the Depositary or its nominee of the
Ordinary Shares in respect of which ADSs to be purchased by the
Underwriters on such Closing Date are to be issued, and the execution,
issuance, countersignature (if applicable) and delivery of the ADRs
evidencing such ADSs pursuant to the Deposit Agreement and such other
matters related thereto as the Representatives shall reasonably request.
(l) The closing of the purchase of the International Underwritten
Securities and the Singapore Underwritten Securities to be issued and
sold by the Company pursuant to the International Underwriting Agreement
and the Singapore Management and Underwriting Agreement, respectively,
shall occur substantially concurrently (giving effect to the time
difference between New York and Singapore) with the closing of the
purchase of the U.S. Underwritten Securities described herein.
(m) The Ordinary Shares shall have been listed and admitted and
authorized for trading on the SES, and the ADSs shall have been included
for quotation on The
23
24
Nasdaq National Market, Inc., and satisfactory evidence of all such
actions shall have been provided to the Representatives.
(n) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this U.S.
Underwriting Agreement and the International Underwriting Agreement, or if any
of the opinions and certificates mentioned above or elsewhere in this U.S.
Underwriting Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this U.S. Underwriting Agreement and all obligations of the U.S.
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
7. Commissions, Costs and Expenses. In consideration of the
agreement by the U.S. Underwriters to subscribe for the U.S. Underwritten Shares
and the U.S. Option Shares (subject to the option for the U.S. Option Shares
referred to in the preamble above being duly exercised in accordance with
Section 3 of this U.S. Underwriting Agreement), the Company shall pay to the
U.S. Underwriters on the Closing Date, or on the date on which such Option
Securities are purchased, as the case may be, a combined management and
underwriting commission of 1.8 per cent. and a selling commission of 2.7 per
cent. in respect of the U.S. Underwritten Shares or the U.S. Option Shares, as
the case may be.
8. Reimbursement of Underwriters' Expenses. The Company has
agreed to reimburse the Underwriters severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney on
demand for out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities (including all fees and
disbursements of counsel and any stamp duties, similar taxes or duties or other
taxes, if any, incurred by the Underwriters in connection with the Directed
Share Program) up to an aggregate maximum of $500,000. In addition, if the sale
of the Securities provided for under the Underwriting Agreements is not
consummated because any condition to the obligations of the U.S. Underwriters or
the International Underwriters set forth in Section 6 of the Underwriting
Agreements is not satisfied, because of any termination pursuant to Section 11
of the Underwriting Agreements or because of any refusal, inability or failure
on the part of the Company to perform any agreement under the Underwriting
Agreements or comply with any provision of the Underwriting Agreements other
than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ on demand for
all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been reasonably incurred by them in connection with the
proposed purchase and sale of the Securities, up to an aggregate maximum of
$500,000.
24
25
9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
U.S. Underwriter, the directors, officers, employees and agents of each
U.S. Underwriter and each person who controls any U.S. Underwriter
within the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement originally filed or in any amendment thereof,
or in the ADR Registration Statement as originally filed in any
amendment thereof, or in any U.S. or International Preliminary
Prospectus or in either of the Prospectuses, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of any U.S. Underwriter through the U.S.
Representatives specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have ; provided further, that with respect to any untrue
statement or omission of material fact made in any Preliminary
Prospectus, the indemnity agreement contained in this Section 9(a) shall
not inure to the benefit of any U.S. Underwriter from whom the person
asserting any such loss, claim, damage or liability purchased the
Securities, or any person controlling such U.S. Underwriter, to the
extent that any such loss, claim, damage or liability of such U.S.
Underwriter (or any person controlling such U.S. Underwriter) occurs
under the circumstance where it shall have been determined by a court of
competent jurisdiction by final and nonappealable judgment that (w) the
Company had previously furnished copies of the Prospectus to the
Representatives, (x) delivery of the Prospectus was required by the Act
to be made to such person, (y) the untrue statement or omission of a
material fact contained in the Preliminary Prospectus was corrected in
the Prospectus and (z) there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Securities to such
person, a copy of the Prospectus.
(b) The Company agrees to indemnify and hold harmless
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney and each person, if any, who controls ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act ("▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Entities") from
and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action
or claim) (i) caused by any untrue statement or alleged untrue statement
of a material fact contained in the prospectus wrapper material prepared
by or with the consent of the Company for distribution outside
25
26
of Singapore in connection with the Directed Share Program attached to
the Prospectuses or any Preliminary Prospectus, or caused by any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statement therein, when
considered in conjunction with the Prospectuses or any applicable
Preliminary Prospectus, not misleading; or (ii) related to, arising out
of, or in connection with the Directed Share Program, provided that, the
Company shall not be responsible under this subparagraph (ii) for any
losses, claim, damages or liabilities (or expenses relating thereto)
that are finally judicially determined to have resulted from the bad
faith or gross negligence of any ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Entities.
(c) Each U.S. Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, or the ADR
Registration Statement, and each person who controls the Company within
the meaning of either the Act or Exchange Act, to the same extent as the
foregoing indemnity to each U.S. Underwriter, but only with reference to
written information relating to such U.S. Underwriter furnished to the
Company by or on behalf of such U.S. Underwriter through the U.S.
Representatives specifically for inclusion in the documents referred to
in the foregoing indemnity. This indemnity agreement will be in addition
to any liability which any U.S. Underwriter may otherwise have. The
Company acknowledges that (A) the names of the Underwriters contained in
any U.S. Prospectus or International Prospectus or the Prospectuses and
their respective participation in the sale of the Securities as set
forth in the two charts under the heading "Underwriting" in any U.S. or
International Prospectus or the Prospectuses, (B) the statements set
forth in the last paragraph on the front cover page of any U.S. or
International Prospectus regarding delivery of the Securities (and the
ADSs representing such Securities) and (C) the statements set forth in
the seventh, tenth and sixteenth paragraphs under the heading
"Underwriting" in any U.S. or International Preliminary Prospectus and
the Prospectuses constitute the only information furnished in writing by
or on behalf of the several U.S. Underwriters for inclusion in any U.S.
or International Preliminary Prospectus or the Prospectuses.
(d) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under
paragraph (a), (b) or (c) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a), (b) or (c) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint
26
27
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney for the defense
of any losses, claims, damages and liabilities arising out of the
Directed Share Program, and all persons, if any, who control such U.S.
Underwriters within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act. It is understood, however, that the
Company shall, in connection with any one such action or separate but
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
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought under this U.S.
Underwriting Agreement (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from liability arising out of such claim, action,
suit or proceeding. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent.
(e) In the event that the indemnity provided in paragraph (a),
(b) or (c) of this Section 9 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the U.S.
Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the U.S.
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by the U.S.
Underwriters from the offering of the U.S. Securities; provided,
however, that in no case shall any U.S. Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of
the U.S. Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities
purchased by such U.S. Underwriter hereunder. If the
27
28
allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company and the U.S. Underwriters shall contribute
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company and of the U.S.
Underwriters in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the U.S. Underwriters
shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the U.S.
Prospectus. Relative fault shall be determined by reference to, among
other things, whether any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information provided by the Company or the U.S. Underwriters, the intent
of the parties and their relative knowledge access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company and the U.S. Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (e), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person who
controls an U.S. Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an U.S.
Underwriter shall have the same rights to contribution as such U.S.
Underwriter, and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and the ADR Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (e).
10. Default by an Underwriter. If any one or more U.S.
Underwriters shall fail to purchase and pay for any of the U.S. Securities
agreed to be purchased by such U.S. Underwriter or U.S. Underwriters under this
U.S. Underwriting Agreement and such failure to purchase shall constitute a
default in the performance of its or their obligations under this Agreement, the
remaining U.S. Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the amount of U.S. Securities set forth
opposite their names in Schedule I hereto bears to the aggregate amount of U.S.
Securities set forth opposite the names of all the remaining U.S. Underwriters)
the U.S. Securities which the defaulting U.S. Underwriter or U.S. Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of U.S. Securities which the defaulting U.S. Underwriter or
U.S. Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate amount of Securities set forth in Schedule I hereto, the remaining
U.S. Underwriters shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the U.S. Securities, and if such
nondefaulting U.S. Underwriters do not purchase all the U.S. Securities, this
Agreement will terminate without liability to any nondefaulting U.S. Underwriter
or the Company. In the event of a default by any U.S. Underwriter as set forth
in this Section 10, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the U.S. Representatives shall determine in
order that the required changes in the Registration Statement, the ADR
28
29
Registration Statement and the Prospectuses or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting U.S. Underwriter of its liability, if any, to the Company and any
nondefaulting U.S. Underwriter for damages occasioned by its default under this
U.S. Underwriting Agreement.
11. Termination. This U.S. Underwriting Agreement shall be
subject to termination in the absolute discretion of the U.S. Representatives,
by notice given to the Company prior to delivery of and payment for the U.S.
Securities, if prior to such time (i) trading in the Company's ADSs shall have
been suspended by the Commission or the Nasdaq National Market, Inc., trading in
the Company's Ordinary Shares shall have been suspended by the SES, trading in
securities generally on the New York Stock Exchange, The Nasdaq National Market,
Inc. or the SES shall have been suspended or limited or minimum prices shall
have been established on such exchange or The Nasdaq National Market, Inc., (ii)
a banking moratorium shall have been declared either by U.S. Federal, New York
State or Singapore authorities or (iii) there shall have occurred any outbreak
or escalation of hostilities involving the United States or Singapore,
declaration by the United States or Singapore of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the U.S. Representatives, impracticable or
inadvisable to proceed with the offering or delivery of the prospectus as
contemplated by the U.S. Prospectus (exclusive of any supplement thereto).
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the U.S. Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any U.S. Underwriter or the Company or
any of the officers, directors or controlling persons referred to in Section 9
hereof, and will survive delivery of and payment for the U.S. Securities. The
provisions of Sections 8 and 9 hereof shall survive the termination or
cancellation of this U.S. Underwriting Agreement.
13. Notices. All communications under this U.S. Underwriting
Agreement will be in writing and effective only on receipt, and, if sent to the
U.S. Representatives, will be mailed, delivered or telefaxed c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc. General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇ and confirmed to such
General Counsel at ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, U.S.A., Attention: General Counsel; or, if sent to the Company,
will be mailed, delivered or telefaxed to the Legal Department (fax no.: (65)
▇▇▇▇-▇▇▇) and confirmed to it at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Attention: Legal Department.
14. Successors. This U.S. Underwriting Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 9 hereof, and no other person will have any right or obligation under
this U.S. Underwriting Agreement.
15. Jurisdiction. The Company agrees that any suit, action or
proceeding against the Company brought by any U.S. Underwriter, by the
directors, officers, employees and agents of any U.S. Underwriter or by any
person who controls any U.S. Underwriter, arising out of or based upon this U.S.
Underwriting Agreement or the transactions contemplated hereby may
29
30
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 Chartered Semiconductor
Manufacturing, Inc., at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 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
Court by any U.S. Underwriter, by the directors, officers, employees and agents
of any U.S. Underwriter or by any person who controls any U.S. Underwriter and
expressly accepts the non-exclusive jurisdiction of any such court in respect of
any such suit, action or proceeding. The Company consents to process being
served in any action or proceeding by mailing a copy thereof by registered or
certified mail to the Authorized Agent. The Company hereby represents and
warrants that the Authorized Agent has accepted such appointment and has agreed
to act as said agent for service of process, and the Company agrees to take any
and all action, including the filing of any and all documents that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent shall be deemed, in every respect,
effective service of process upon the Company. Notwithstanding the foregoing,
any action arising out of or based upon this Agreement may be instituted by any
U.S. Underwriter, by the directors, officers, employees and agents of any U.S.
Underwriter or by any person who controls any U.S. Underwriter, in any other
court of competent jurisdiction, including those in Singapore.
The provisions of this Section 15 shall survive any termination
of the U.S. Underwriting Agreement, in whole or in part.
16. Applicable Law. This U.S. Underwriting Agreement will be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
17. Currency. Each reference in this U.S. Underwriting Agreement
to U.S. dollars (the "relevant currency") is of the essence. To the fullest
extent permitted by law, the obligations of the Company in respect of any amount
due under this U.S. Underwriting Agreement will, notwithstanding any payment in
any other currency (whether pursuant to a judgment or otherwise), be discharged
only to the extent of the amount in the relevant currency that the party
entitled to receive such payment may, in accordance with its normal procedures,
purchase with the sum paid in such other currency (after any premium and costs
of exchange) on the Business Day immediately following the day on which such
party receives such payment. If the amount in the relevant currency that may be
so purchased for any reason falls short of the amount originally due, the
Company will pay such additional amounts, in the relevant currency, as may be
necessary to compensate for the shortfall. If, alternatively, the amount in the
relevant currency that may be so purchased for any reason exceeds the amount
originally due, the party entitled to receive such original amount will return
such excess amounts, in the relevant currency, to the Company. Any obligation of
the Company not discharged by such payment will, to the fullest extent permitted
by applicable law, be due as a separate and independent obligation and, until
discharged as provided herein, will continue in full force and effect.
18. Waiver of Immunity. To the extent that the Company has or
hereafter may acquire any immunity (sovereign or otherwise) from any legal
action, suit or proceeding,
30
31
from jurisdiction of any court or from set-off or any legal process (whether
service or notice, attachment in aid or otherwise) with respect to itself or any
of its property, the Company hereby irrevocably waives and agrees not to plead
or claim such immunity in respect of its obligations under this Agreement.
19. Counterparts. This U.S. Underwriting Agreement may be signed
in one or more counterparts, each of which shall constitute an original, and all
of which together shall constitute one and the same agreement.
20. Headings. The section headings used in this U.S. Underwriting
Agreement are for convenience only and shall not affect the construction hereof.
21. Definitions. The terms which follow, when used in this U.S.
Underwriting Agreement, shall have the meanings indicated.
"Act" shall mean the United States Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"ADR" shall mean the certificate(s) issued by the Depositary to
evidence the American Depositary Shares issued under the terms of the
Deposit Agreement.
"ADR Registration Statement" shall mean the registration
statement referred to in paragraph 1(c) above, including all exhibits
thereto, each as amended at the time such part of the registration
statement became effective.
"Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in
The City of New York, New York and Singapore are authorized or obligated
by law, executive order or regulation to close.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement and the ADR Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or becomes effective.
"Exchange Act" shall mean the United States Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Execution Time" shall mean the date and time that this U.S.
Underwriting Agreement is executed and delivered by the parties hereto.
"International Preliminary Prospectus" shall mean any preliminary
prospectus with respect to the offering of the International Securities.
"International Prospectus" shall mean such form of prospectus
relating to the International Securities.
31
32
"International Representatives" shall mean the addressees of the
International Underwriting Agreement.
"International Securities" shall mean the International
Underwritten Securities and the International Option Securities.
"International Underwriters" shall mean the several Underwriters
named in Schedule I to the International Underwriting Agreement.
"International Underwriting Agreement" shall mean the
International Underwriting Agreement dated the date hereof related to
the sale of the International Securities by the Company to the
International Underwriters.
"New York Courts" shall mean the U.S. Federal or State courts
located in the State of New York, County of New York.
"Option Securities" shall mean the U.S. Option Securities and the
International Option Securities.
"Option Shares" shall mean the U.S. Option Shares and the
International Option Shares.
"Preliminary Prospectuses" and each "Preliminary Prospectus"
shall mean the U.S. Preliminary Prospectus and the International
Preliminary Prospectus.
"Prospectuses" and "each Prospectus" shall mean the U.S.
Prospectus and the International Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended or such Rule
462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Representatives" shall mean the U.S. Representatives and the
International Representatives.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under
the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
32
33
"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 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
33
34
Rule 424(b) is required, shall mean the form of final prospectus
relating to the Securities included in the Registration Statement at the
Effective Date.
"U.S. Representatives" shall mean the addressees of the U.S.
Underwriting Agreement.
"U.S. Securities" shall mean the U.S. Underwritten Securities and
the U.S. Option Securities.
"U.S. Underwriters" shall mean the several Underwriters named in
Schedule I to the U.S. Underwriting Agreement.
"U.S. Underwriting Agreement" shall mean this agreement relating
to the sale of the U.S. Securities by the Company to the U.S.
Underwriters.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several U.S. Underwriters.
Very truly yours,
Chartered Semiconductor Manufacturing
Ltd
By: /s/ Chia Song Hwee
---------------------------------------------
Name: Chia Song Hwee
Title: Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
For itself and the other several
U.S. Representatives and U.S. Underwriters
named in Schedule I
to the foregoing Agreement.
34
35
ANNEX A
List of Subsidiaries
Chartered Semiconductor Manufacturing, Inc.
Chartered Silicon Partners Pte Ltd
35
36
SCHEDULE I
Number of
U.S. Underwriter U.S. Underwritten Shares
---------------- ------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc............................ 52,500,000
Credit Suisse First Boston Corporation.............. 45,000,000
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC............................... 18,750,000
▇▇ ▇▇▇▇▇ Securities Corporation..................... 18,750,000
SoundView Technology Group, Inc..................... 15,000,000
Total............................................... 150,000,000
36