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EXHIBIT 1.1
Execution Copy
Chartered Semiconductor Manufacturing Ltd
81,060,000 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
May 4, 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Credit Suisse First Boston Corporation
Chase Securities Inc.
▇▇ ▇▇▇▇▇ Securities Corporation
Wit SoundView Corporation
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, 46,800,000 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") and each of
the Selling Shareholders named in Schedule II hereto proposes to sell to the
several U.S. Underwriters the number of Ordinary Shares directly or in the form
of ADSs set forth opposite its name on Schedule II aggregating 34,260,000
Ordinary Shares (said Ordinary Shares to be issued and sold by the Company and
the Selling Shareholders being hereinafter called the "U.S. Underwritten
Shares"). The Company and Singapore Technologies Semiconductors Pte Ltd ("STS")
also propose to grant to the U.S. Underwriters an option to purchase up to
7,020,000 and 5,139,000, respectively, 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").
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* Plus an option to purchase from Chartered Semiconductor Manufacturing
Ltd and Singapore Technologies Semiconductors Pte Ltd up to 7,020,000
and 5,139,000, respectively, additional Ordinary Shares directly or in
the form of American Depositary Shares to cover overallotments.
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It is understood that the Company and certain selling shareholders are
concurrently entering into the International Underwriting Agreement, dated May
4, 2000 (together with this U.S. Underwriting Agreement, the "Underwriting
Agreements"), providing for the sale by the Company and such selling
shareholders of an aggregate of 54,040,000 Ordinary Shares directly or in the
form of ADSs (said Ordinary Shares to be sold by the Company and such selling
shareholders 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 and STS up to 4,680,000 and 3,426,000, respectively, 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").
In connection with the Global Offering (as defined below), the Company
has made a listing application to the Singapore Exchange Securities Trading
Limited (the "SGX-ST") and has lodged a Statement of Material Facts (the
"Statement") with the Singapore Registrar of Companies and Businesses ("RCB") to
invoke the exemption from the prospectus registration requirements under Section
106F of the Companies Act, Chapter 50 of Singapore.
You have also advised the Company and the Selling Shareholders 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"), 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 Ordinary 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.
Prior to the Closing Date (as defined below), the Ordinary Shares to be
issued and sold by the Company will be delivered into escrow to be held by
Citibank Nominees Singapore Pte Ltd, as escrow agent (the "Escrow Agent"),
pursuant to an escrow agreement (the "Issuer Escrow Agreement") to be entered
into between the Company, the Escrow Agent and the Underwriters. Prior to the
Closing Date, the Ordinary Shares to be sold by each Selling Shareholder will be
delivered into escrow to be held by the Escrow Agent pursuant to an escrow
agreement (each, a "Selling Shareholder Escrow Agreement") to be entered into
between a Selling Shareholder, the custodian for such Selling Shareholder, the
Escrow Agent and the Underwriters.
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" 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 and
Shares, as well as, in each case, to any ADSs representing such securities.
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It is further understood and agreed that the U.S. Underwriters and the
International Underwriters have entered into an Agreement Among U.S.
Underwriters and International Underwriters, dated the date hereof (the
"Agreement Among U.S. Underwriters and International Underwriters"), pursuant to
which, among other things, the International 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 and the U.S. Underwriters may purchase from the
International Underwriters a portion of the International Securities to be sold
pursuant to the International 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"; and the offering of the International
Shares, directly or in the form of ADSs, is referred to herein as the
"International Offering". The U.S. Offering and International Offering are
referred to collectively as the "Global Offering".
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. In addition, to the extent that there is not more than
one Selling Shareholder named in Schedule II, the term Selling Shareholders
shall mean the singular. 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. (I) The Company and, except as
to paragraphs (i), (n) (other than clause (i) thereof), (q), (r), (s), (t)
(other than clause (i) thereof), (v), (w), (x), (y), (z), (aa), (bb), (cc),
(dd), (ff), (gg) and (hh) below, STS jointly and severally represent and warrant
to, and agree 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 333-34194) on Form F-1, including the related
U.S. Preliminary Prospectus, for the registration under the Act of the
offering and sale of the U.S. Securities. The Company may have filed one
or more amendments thereto, including the related U.S. Preliminary
Prospectus, which have 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
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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 offering documents are to be
used in connection with the Global 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
offering memorandum 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 Offering Memorandum
are identical except for the outside front cover page and the outside
back cover page.
(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 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 and STS
make no representations or warranties as to the information contained in
or omitted from the Registration Statement, or the Prospectuses (or any
supplement thereto), in reliance upon and in conformity with information
furnished herein or in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in
the Registration Statement or the Prospectuses (or any supplement
thereto). It is understood that the information that has been furnished
in writing by or on behalf of the several Underwriters for inclusion in
the Registration Statement, Preliminary Prospectuses or the Prospectuses
is limited to (A) the names of the Underwriters and their respective
participation in the sale of the Securities as set forth in the two
charts under the heading "Underwriting" in the Preliminary Prospectuses
or Prospectuses, (B) the statements set forth in the last paragraph on
the front cover page of the Preliminary Prospectuses or Prospectuses
regarding delivery of the Securities (and the ADSs representing such
Securities) and (C) the statements set forth in the seventh, ninth,
thirteenth and fifteenth paragraphs under the heading "Underwriting" in
the Preliminary Prospectuses or Prospectuses.
(c) The Company has filed with the Commission registration
statements (file numbers 333-88623 and 333-34692) on Form F-6
(collectively, the "ADR Registration
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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 Agilent Technologies Europe BV 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 Ordinary Shares 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 and the Issuer Escrow
Agreement, to the U.S. Underwriters in accordance with this U.S.
Underwriting Agreement and the Issuer Escrow Agreement and to the
International Underwriters in accordance with the International
Underwriting Agreement and the Issuer Escrow Agreement, will be validly
issued, fully paid and non-assessable. The certificates for the Shares
and the ADRs that are in certificated form 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
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 being sold by the Company are freely
transferable by the Company to or for the account of the several
Underwriters, their designees and the initial purchasers thereof. Except
as set forth in the Prospectuses, there
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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 Articles of Association described in the Prospectuses
under the heading "Description of Ordinary Shares" are in full force and
effect.
(h) Each of this U.S. Underwriting Agreement, the
International Underwriting Agreement and the Deposit Agreement has been
duly authorized, executed and delivered by the Company. The Issuer
Escrow Agreement has been duly authorized by the Company and, on or
prior to the Closing Date, will be duly 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 issuance by the Depositary of the ADRs evidencing
the ADSs against deposit in accordance with the provisions of the
Deposit Agreement of the underlying Ordinary Shares being sold by the
Company under the Underwriting Agreements, such ADSs will be duly and
validly issued and persons in whose names such ADSs are duly registered
will be entitled to the rights specified in the ADSs and in the Deposit
Agreement. Assuming that an Underwriter acquires its interest in such
ADSs without notice of an adverse claim (within the meaning of Section
8-105 of the UCC), such Underwriter that has purchased such ADSs
delivered to The Depository Trust Company by making payment therefor as
provided herein, and that has had such ADSs credited to the securities
account or accounts of such Underwriter maintained with The Depository
Trust Company or other securities intermediary will have acquired a
security entitlement (within the meaning of Section 8-102(a)(17) of the
New York Uniform Commercial Code (the "UCC")) to such ADSs purchased by
such Underwriter, and no action based on any such adverse claim (within
the meaning of Section 8-102(a)(1) of the UCC) may be asserted against
such Underwriter with respect to such ADSs.
(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 being sold by the Company
under the Underwriting Agreements in the manner contemplated by the
Underwriting Agreements, (C) the deposit with the Depositary of the
underlying Ordinary Shares being sold by the Company under the
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Underwriting Agreements against issuance of ADRs evidencing the ADSs,
(D) the sale and delivery of the Ordinary Shares and the ADSs by the
Company to the Underwriters in accordance with the Underwriting
Agreements, 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 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 consummation by the Company of the
transactions contemplated in this U.S. Underwriting Agreement, the
International Underwriting Agreement, the Deposit Agreement and the
Issuer Escrow Agreement, except (A) such as have been obtained under the
Act, the Exchange Act, the Companies Act, Chapter 50 of Singapore, (B)
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 and (C) such as may be
required pursuant to the National Association of Securities Dealers,
Inc. rules, The Nasdaq Stock Market, Inc. rules, the letter from the
SGX-ST dated September 15, 1999 granting approval in principle for the
listing and quotation of the entire issued share capital of the Company
on the Main Board of the SGX-ST, or the letter from the SGX-ST dated
March 29, 2000 regarding the listing of the new Shares, which such
approvals have been obtained.
(n) None of the issue and sale of the Securities, the
consummation of any other of the transactions contemplated in this U.S.
Underwriting Agreement, the International Underwriting Agreement, the
Deposit Agreement or the Issuer Escrow Agreement, or the fulfillment of
the terms hereof or thereof will conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Subsidiaries pursuant
to, (i) the Memorandum and Articles of Association of the Company or the
constituent documents of any of the Subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement, permit, license, franchise or other agreement,
obligation, condition, covenant or instrument to which the Company or
any of the Subsidiaries is a party or bound or to which its or their
property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of the
Subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company or any of the Subsidiaries or any of its or their
properties, except, with respect to clause (ii) or (iii)
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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.
(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.
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(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 ("KPMG"), who have certified certain financial
statements of the Company and the Subsidiaries and delivered their
report with respect to the audited consolidated financial statements and
schedules included in the Registration Statement and the Prospectuses,
are independent public accountants with respect to the Company within
the meaning of the Act and the applicable published rules and
regulations thereunder.
(v) The Company has not taken, directly or indirectly, any
action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute under the Exchange Act
or otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities, provided, however, that this provision shall not apply to
any trading or stabilization activities conducted by the Underwriters.
(w) Each of the Company and the Subsidiaries possesses all
licenses, permits, certificates and other authorizations issued by the
appropriate Singapore, U.S., foreign, federal, state or local regulatory
authorities necessary to conduct its business as currently conducted,
except in any case in which the failure so to possess any such license,
permit, certificate or other authorization would not, individually or in
the aggregate, have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole. Neither the Company
nor any of the Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such license, permit,
certificate or authorization which, singly or in the aggregate, if the
subject of an unfavorable decision ruling or findings, would have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in the
Prospectuses (exclusive of any supplement thereto).
(x) Except as described in the Prospectuses, for the periods
described in the Prospectuses, the Company has no material capital
commitments.
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(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).
(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,
Agilent Technologies Europe BV 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
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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 has addressed the Year 2000
Problem with respect to the material operations of the Company and that
the Year 2000 Problem will not have a material adverse effect upon the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole.
(dd) The Company has filed all Singapore, U.S., foreign,
federal, state and local tax returns that are required to be filed or
has requested extensions thereof, except in any case in which the
failure so to file would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto) and has paid all taxes required to
be paid by it and any other assessment, fine or penalty levied against
it, to the extent that any of the foregoing is due and payable, except
for any such assessment, fine or penalty that is currently being
contested in good faith or as would not have a material adverse effect
on the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto).
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(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 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 ("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).
(hh) 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
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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.
(ii) 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.
(II) Each Selling Shareholder (other than STS with respect to
paragraphs (d) and (f) to the extent they relate to the Custody Agreement),
severally and not jointly, represents and warrants to, and agrees with, each
U.S. Underwriter and the Company as follows:
(a) Such Selling Shareholder is the lawful owner of the
Ordinary Shares to be sold by such Selling Shareholder pursuant to this
Underwriting Agreement free and clear of all liens, encumbrances,
equities and claims whatsoever.
(b) Assuming that (i) Ordinary Shares to be purchased by any
Underwriter or to be delivered to the Depositary have been credited to
the Escrow Account (as defined in the Selling Shareholder Escrow
Agreement) in accordance with the provisions of the Selling Shareholder
Escrow Agreement and (ii) a certificate substantially in the form of
Annex A to the Selling Shareholder Escrow Agreement has been delivered
by a Selling Shareholder in accordance with the Selling Shareholder
Escrow Agreement, such Underwriter and the Depositary, as the case may
be, will own such Ordinary Shares free and clear of all liens,
encumbrances, equities and claims whatsoever.
(c) In the case of an Underwriter entitled to receive ADRs
evidencing ADSs, upon issuance by the Depositary of ADRs evidencing the
ADSs against deposit in accordance with the provisions of the Deposit
Agreement of the underlying Ordinary Shares being sold by such Selling
Shareholder under the Underwriting Agreements, such ADSs will be duly
and validly issued and persons in whose names such ADSs are duly
registered will be entitled to the rights specified in the ADSs and in
the Deposit Agreement. Assuming that an Underwriter acquires its
interest in such ADSs without notice of an adverse claim (within the
meaning of Section 8-105 of the UCC), such Underwriter that has
purchased such ADSs delivered to The Depository Trust Company by making
payment therefor as provided herein, and that has had such ADSs credited
to the securities account or accounts of such Underwriter maintained
with The Depository Trust Company or such other securities intermediary
will have acquired a security entitlement (within the meaning of Section
8-102(a)(17) of the UCC) to such ADSs purchased by such Underwriter, and
no action based on any such adverse claim (within the meaning of Section
8-102(a)(1) of the UCC) may be asserted against such Underwriter with
respect to such ADSs.
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(d) Such Selling Shareholder's Ordinary Shares have been
placed in custody, for delivery pursuant to the terms of this
Underwriting Agreement, under a Custody Agreement and Power of Attorney
duly authorized (if applicable), executed and delivered by such Selling
Shareholder, in the form heretofore furnished to you (the "Custody
Agreement") with ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. as the Custodian (the
"Custodian"); the Ordinary Shares so held in custody for each Selling
Shareholder are subject to the interests under this Underwriting
Agreement of the Underwriters; the arrangements for custody and delivery
of such Ordinary Shares made by such Selling Shareholder under this
Underwriting Agreement and under the Custody Agreement and the Selling
Shareholder Escrow Agreement are not subject to termination by any acts
of such Selling Shareholder, or by operation of law, whether by the
insolvency of such Selling Shareholder or the occurrence of any other
event; and if any such insolvency or any other such event shall occur
before the delivery of the Securities under this Underwriting Agreement,
subject to applicable Singapore law, Ordinary Shares will be delivered
by the Custodian and Escrow Agent in accordance with the terms and
conditions of this Underwriting Agreement, the Custody Agreement and the
Selling Shareholder Escrow Agreement as if such insolvency or other
event had not occurred, regardless of whether or not the Custodian and
Escrow Agent shall have received notice of such insolvency or other
event.
(e) Each of this U.S. Underwriting Agreement and the
International Underwriting Agreement has been duly authorized, executed
and delivered by such Selling Shareholder. The respective Selling
Shareholder Escrow Agreement has been duly authorized by the Selling
Shareholder and, on or prior to the Closing Date, will be duly executed
and delivered by the Selling Shareholder. No consent, approval
(including exchange control approval), authorization, filing with or
order of any court or governmental agency or body is required under
Singapore or U.S. federal law or the laws of any state or political
subdivision thereof for the consummation by such Selling Shareholder of
the transactions contemplated in this Underwriting Agreement, except
such as may have been obtained under the Act, the Exchange Act, the
Companies Act, Chapter 50 of Singapore, such as may be required under
the blue sky laws of any jurisdiction and the securities laws of any
jurisdiction outside the United States in connection with the purchase
and distribution of the Securities by the Underwriters in the manner
contemplated in the Underwriting Agreements and the Prospectuses and
such as may be required pursuant to the National Association of
Securities Dealers, Inc. rules or The Nasdaq Stock Market, Inc. rules,
which such approvals have been obtained.
(f) None of the execution and delivery of this Underwriting
Agreement, the Custody Agreement and the Selling Shareholder Escrow
Agreement, the deposit of the Underwritten Securities being sold by such
Selling Shareholder with the Depositary in accordance with the terms of
the Deposit Agreement, the Custody Agreement and the Selling Shareholder
Escrow Agreement, the sale of the Securities being sold by the Selling
Shareholder, the consummation of any other of the transactions
contemplated in this Underwriting Agreement by such Selling Shareholder
or the fulfillment of the terms hereof by such Selling Shareholder will
conflict with, result in a breach or violation of, or constitute a
default under (i) the charter or by-laws of such Selling Shareholder,
(ii) the terms of any indenture or other agreement or instrument to
which such Selling
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Shareholder or any of its subsidiaries is a party or bound, or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable to
such Selling Shareholder or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over such Selling Shareholder or any of its
subsidiaries except, with respect to clause (ii) or (iii) above, such as
would not individually or in the aggregate, have a material adverse
effect on the performance of this Underwriting Agreement or the
consummation of any of the transactions contemplated herein.
(g) 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 the case of STS)
or the government in which the Selling Shareholder is domiciled or any
political subdivision or taxing authority thereof (in the case of other
Selling Shareholders) in connection with (A) the issuance of the ADSs
being sold by such Selling Shareholder under the Underwriting Agreements
in the manner contemplated by the Underwriting Agreements, (B) the
deposit with the Depositary of the Underwritten Securities being sold by
such Selling Shareholder under the Underwriting Agreements against
issuance of ADRs evidencing the ADSs, (C) the sale and delivery of the
Ordinary Shares and the ADSs being sold by the Selling Shareholder to
the Underwriters in accordance with the Underwriting Agreements, or (D)
except as disclosed in the Prospectuses under the heading
"Taxation--Singapore Taxation", the resale and delivery by the
Underwriters of the Ordinary Shares or the ADSs being sold by such
Selling Shareholder to the Underwriters in the manner contemplated in
the Prospectuses.
(h) Such Selling Shareholder 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.
(i) The sale of the Securities by such Selling Shareholder
pursuant hereto is not prompted by any information concerning the
Company or any of its subsidiaries which is not set forth in the
Prospectuses or any supplement thereto.
(j) In respect of any statements in or omissions from the
Registration Statement and the ADR Registration Statement or the
Prospectuses or any supplements thereto made in reliance upon and in
conformity with information furnished in writing to the Company by such
Selling Shareholder specifically for use in connection with the
preparation thereof, such Selling Shareholder hereby makes the same
representations and warranties to each Underwriter and the Company as
the Company makes to such Underwriter under paragraph (I)(b) of this
Section. The Company and each Underwriter acknowledge that the
information set forth under the heading "Principal and Selling
Shareholders" constitutes the only information so furnished.
Any certificate signed by any officer of any Selling Shareholder and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the
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Securities shall be deemed a representation and warranty by such Selling
Shareholder, as to matters covered thereby, to each U.S. Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon
the representations and warranties set forth in this U.S. Underwriting
Agreement, the Company and each Selling Shareholder agrees, severally
and not jointly, to sell to each U.S. Underwriter, and each U.S.
Underwriter agrees, severally and not jointly, to purchase from the
Company and the Selling Shareholders, at a purchase price of US$65.00
per ADS and S$11.20 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 and STS hereby grant an option to the several
U.S. Underwriters to purchase, severally and not jointly, up to
7,020,000 and 5,139,000, respectively, 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 proportionally from the Company and STS 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 and STS setting forth the number of
shares of the U.S. Option Securities as to which the several U.S.
Underwriters are exercising the option and the settlement date. The
number of U.S. Option Securities to be purchased by each U.S.
Underwriter shall be the same percentage of the total number of shares
of the U.S. Option Securities to be purchased by the several U.S.
Underwriters as such U.S. Underwriter is purchasing of the U.S.
Underwritten Securities, subject to such adjustments as you in your
absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
U.S. Underwritten Securities and the U.S. Option Securities (if the option
provided for in Section 2(b) hereof shall have been exercised on or before the
third Business Day prior to the Closing Date) shall be made at 9:00 AM, New York
City time, on May 9, 2000 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, the
Selling Shareholders 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 and the Selling Shareholders to or upon the
order of the Company and the Selling Shareholders by wire transfer payable in
same day funds to the accounts specified by the Company and the Selling
Shareholders. Delivery of
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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 that the settlement date for any U.S. Option Securities occurring
after the Closing Date shall occur simultaneously with the settlement date for
any International Option Securities occurring after the Closing Date under the
International Underwriting Agreement.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company and STS will
deliver (at their expense) to the U.S. Representatives, c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the date specified by
the U.S. Representatives (which shall be within three Business Days after
exercise of said option), 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 and STS respectively, by wire transfer of U.S.
dollars and payable in same day funds to the accounts specified by the Company
and STS, respectively. If settlement for the U.S. Option Securities occurs after
the Closing Date, the Company and STS 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
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430A, or filing of the U.S. Prospectus is otherwise required under Rule
424(b), the Company will cause the U.S. Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to
the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the U.S.
Representatives of such timely filing. The Company will promptly advise
the U.S. Representatives (1) when the Registration Statement and the ADR
Registration Statement, if not effective at the Execution Time, shall
have become effective, (2) when the U.S. Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement
or ADR Registration Statement shall have been filed with the Commission,
(3) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement or the ADR Registration
Statement shall have been filed or become effective, (4) of any request
by the Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement or ADR Registration
Statement, or for any supplement to the U.S. Prospectus or for any
additional information, (5) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the ADR Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the U.S. Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or the ADR
Registration Statement or supplement the U.S. Prospectus to comply with
the Act or the rules thereunder, the Company promptly will (1) notify
the U.S. Representatives of any such event; (2) prepare and file with
the Commission, subject to the second sentence of paragraph (i)(a) of
this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance; and (3) supply any
supplemental U.S. Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will timely file
such reports pursuant to the Exchange Act as are necessary in order to
make generally available to its security holders and to the U.S.
Representatives an earnings statement or statements 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
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or dealer may be required by the Act, as many copies of each U.S.
Preliminary Prospectus and U.S. Prospectus and any supplement thereto as
the U.S. Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the U.S. Representatives may designate and will
maintain such qualifications in effect so long as required for the
distribution of the U.S. Securities, provided, however, that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) Except pursuant to the Underwriting Agreements, the
Company will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc., 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 120 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) Each of the Company and the Selling Shareholders (in
proportion to the number of Securities being offered by each of them,
including any Option Securities which the Underwriters shall have
elected to purchase), agrees, severally and not jointly, 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 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
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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 SGX-ST and The Nasdaq National Market, Inc.,
respectively (such SGX-ST listing fees to be paid only by the Company,
however); (vii) any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD") (including filing
fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (viii) the fees and expenses of
the Authorized Agent (as defined in Section 15 hereof); (ix) the cost
and charges of any transfer agent or registrar; and (x) all other costs
and expenses incident to the performance by each of the Company and the
Selling Shareholders 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 and the U.S.
Underwriters pursuant to the Agreement Among U.S. Underwriters and
International Underwriters, (B) stabilization transactions contemplated
under the Agreement Among U.S. Underwriters and International
Underwriters, conducted through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ (or through the
U.S. Representatives and International 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.
(II) The agreements of the U.S. Underwriters set forth in
paragraph (I)(i) of this Section 5 shall terminate upon the earlier of the
following events:
(a) a mutual agreement of the U.S. Representatives and the
International Representatives to terminate the selling restrictions set
forth in paragraph (I)(i) of this Section 5, paragraph (I)(i) of Section
5 of the International Underwriting Agreement and Section 2(f) of the
Agreement Among U.S. Underwriters and International Underwriters; or
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(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 and the International 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 and the U.S. Representatives that the distribution of the
International Securities by the International Underwriters has not yet
been completed. If such notice by the U.S. Representatives or the
International 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.
(III) Each Selling Shareholder agrees with the several
Underwriters and the Company that:
(a) Except pursuant to the Underwriting Agreements, such
Selling Shareholder will not, without the prior written consent of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., offer, sell, contract to sell, pledge or
otherwise dispose of, (or enter into any transaction 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 Selling Shareholder) directly or
indirectly, or file (or participate 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 with
respect to, 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 120 days after the date of this U.S. Underwriting Agreement,
other than Ordinary Shares or ADSs disposed of as bona fide gifts
approved by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
(b) Such Selling Shareholder will not take 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.
(c) Such Selling Shareholder will advise you promptly, and
if requested by you, will confirm such advice in writing, so long as
delivery of a prospectus relating to the Securities by an underwriter or
dealer may be required under the Act, of (i) any material change in the
Company's condition (financial or otherwise), prospects, earnings,
business or properties which comes to the attention of such Selling
Shareholder, (ii) any change in information in the Registration
Statement, the ADR Registration Statement or the Prospectuses relating
to such Selling Shareholder or (iii) any new material information
relating to the Company or relating to any matter stated in the
Prospectuses which comes to the attention of such Selling Shareholder.
(d) Such Selling Shareholder will comply with the agreement
contained in Section 5(I)(h).
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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
and each of the Selling Shareholders 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 each of the Selling Shareholders made in any certificates pursuant to the
provisions hereof, to the performance by the Company and each of the Selling
Shareholders of their respective 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 and STS shall have requested and caused
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Singapore counsel for the Company and STS, 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 the federal laws of the United
States and the laws of the State of New York, to the extent they deem
proper and specified in such opinion, upon the opinion of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ and (B) as to matters of fact, to the extent they deem proper,
on certificates of responsible officers of the Company and public
officials. References to the Prospectuses in this paragraph (b) include
any supplements thereto at the Closing Date.
(c) The Company and STS shall have furnished to the
Representatives the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, United States counsel
for the Company and STS, 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, STS and public officials. References to the
Prospectuses in this paragraph (c) include any supplements thereto at
the Closing Date.
(d) [Intentionally Omitted]
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(e) 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.
(f) 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 and each Selling Shareholder shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(g) 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
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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).
(h) Each Selling Shareholder shall have furnished to the
Representatives a certificate, signed by the Chairman of the Board or
the President and the principal financial or accounting officer of such
Selling Shareholder, dated the Closing Date, to the effect that (1) in
the case of STS, the signers of such certificate have carefully examined
the Registration Statement, the ADR Registration Statement, the
Prospectuses, any supplement to either of the Prospectuses and this U.S.
Underwriting Agreement and the International Underwriting Agreement and
(2) in the case of each Selling Shareholder, the representations and
warranties of such Selling Shareholder in this U.S. Underwriting
Agreement and the International Underwriting Agreement are true and
correct in all material respects on and as of the Closing Date to the
same effect as if made on the Closing Date.
(i) 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;
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(ii) on the basis of a reading of the latest
unaudited condensed consolidated financial statements made
available by the Company and Chartered Semiconductor
Manufacturing Inc.; their limited review, in accordance with
United States generally accepted auditing standards under
Statement on Auditing Standards No. 71 of the three-month period
ended March 31, 2000, and as at March 31, 2000; 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 Semiconductor Manufacturing Inc. as to
transactions and events subsequent to March 31, 2000, such
Company officials advising that no consolidated financial
statements are available as of any date or for any period
subsequent to March 31, 2000, 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 March
31, 2000, there were any changes, at a specified date
not more than five Business Days prior to the date of
the letter, in the share capital of the Company (except
as disclosed in the Registration Statement), any
increase in long-term debt (excluding current
installments) or in total current liabilities, or any
decrease in shareholders' equity of the consolidated
companies as compared with the amounts shown on the
March 31, 2000 unaudited condensed consolidated balance
sheet, or for the period from April 1, 2000 to May 2,
2000 there was any decrease, as compared with the
corresponding period in the preceding year, in
consolidated net revenue of the Company, 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 Semiconductor Manufacturing Inc. set forth in the
Registration Statement and the Prospectuses, including the
information set forth under the captions "Summary," "Risk
Factors," "Use of Proceeds," "Dividend Policy,"
"Capitalization," "Dilution," "Selected Financial Data,"
"Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Business," "Management," "Principal and
Selling Shareholders," "Relationship with Singapore
Technologies", "Description of Ordinary Shares," and "Shares
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Eligible for Future Sale" agrees with or is recomputed from the
accounting records of the Company and the Subsidiaries,
excluding any questions of legal interpretation.
References to the Prospectuses in this paragraph (i) include any
supplement thereto at the date of the letter.
(j) 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 (i)
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).
(k) At the Execution Time, the Company shall have furnished
to the Representatives a letter substantially in the form of Exhibit A
hereto from each shareholder of the Company listed in Schedule III
hereto.
(l) The Deposit Agreement shall be in full force and effect,
and shall not have been amended except as approved by the
Representatives.
(m) 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.
(n) The closing of the purchase of the International
Underwritten Securities to be issued and sold pursuant to the
International Underwriting Agreement 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.
(o) The Ordinary Shares shall have been listed and admitted
and authorized for trading on the SGX-ST, and the ADSs shall have been
included for quotation on The Nasdaq National Market, Inc., and
satisfactory evidence of all such actions shall have been provided to
the Representatives.
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(p) Prior to the Closing Date, the Company and the Selling
Shareholders 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 and each Selling Shareholder in writing or by telephone or facsimile
confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the offices of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, at 39th Floor, Bank of China Tower, One Garden Road, Central, Hong
Kong, 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 and the Selling
Shareholders (in proportion to the number of securities offered by each of
them), severally but not jointly, 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 1.06 per
cent. and a selling commission of 1.59 per cent. in respect of the U.S.
Underwritten Shares or the U.S. Option Shares, as the case may be. The amounts
payable by the Selling Shareholders to the U.S. Underwriters pursuant to this
Section 7 shall be deducted from the amounts payable by the U.S. Underwriters to
the Selling Shareholders pursuant to Section 2.
8. Reimbursement of Underwriters' Expenses. The Company and
each Selling Shareholder have agreed, severally but not jointly (in proportion
to the number of securities being offered by each of them, including any Option
Securities which the Underwriters shall have elected to purchase), to reimburse
the Underwriters 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, up to an aggregate maximum of $500,000 for the Global Offering.
The amounts payable by the Selling Shareholders to the U.S. Underwriters
pursuant to this Section 8 shall be deducted from the amounts payable by the
U.S. Underwriters to the Selling Shareholders pursuant to Section 2. 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 or any Selling Shareholders to
perform any agreement under the Underwriting Agreements or comply with any
provision of the Underwriting Agreements other than by reason
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of a default by any of the Underwriters, the Company and each Selling
Shareholder will, severally but not jointly (in proportion to the number of
securities being offered by each of them, including any Option Securities which
the Underwriters shall have elected to purchase), reimburse the Underwriters
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 for the Global Offering. If
the Company (to the extent permitted by applicable law) makes any payments to
the Underwriters under this Section 8 because of any Selling Shareholder's
refusal, inability or failure to satisfy any condition to the obligations of the
Underwriters set forth in Section 6, the Selling Shareholders shall each
reimburse the Company on demand for all amounts so paid, pro rata in proportion
to the percentage of Securities to be sold by them.
9. Indemnification and Contribution.
(a) The Company (to the extent permitted by
applicable law) and STS jointly and severally agree 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 or in any amendment thereof, or in any 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 and STS 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 or STS
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
describing 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 each 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
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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) 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 and STS, 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 and STS acknowledge that (A)
the names of the Underwriters contained in any Preliminary Prospectus or
either of 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 Preliminary Prospectus or either of the
Prospectuses, (B) the statements set forth in the last paragraph on the
front cover page of any Preliminary Prospectus or either of the
Prospectuses regarding delivery of the Securities (and the ADSs
representing such Securities) and (C) the statements set forth in the
seventh, ninth, thirteenth and fifteenth paragraphs under the heading
"Underwriting" in any Preliminary Prospectus or either of the
Prospectuses constitute the only information furnished in writing by or
on behalf of the several U.S. Underwriters for inclusion in any
Preliminary Prospectus or either of the Prospectuses.
(c) 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) or (b) 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) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party
would present such
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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. It is
understood, however, that the Company shall, in connection with any one
such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of only one separate
firm of attorneys (in addition to any local counsel) at any time for all
such Underwriters and controlling persons, which firm shall be
designated in writing by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding
in respect of which indemnification or contribution may be sought under
this 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.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 9 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company (to the extent
permitted by applicable law), STS 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, STS 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, by STS and by the U.S. Underwriters
from the offering of the U.S. Securities; provided, however, that in no
case shall any U.S. Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the U.S.
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
U.S. Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
Company (to the extent permitted by applicable law), STS 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, of STS 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 and by STS shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) received by each of them,
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
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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, by STS or
by 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, STS 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 (d), 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 (d).
(e) The liability of each Selling Shareholder under its
representations and warranties contained in Section 1 hereof (and of STS
under the indemnity and contribution agreements contained in this
Section 9) shall be limited to an amount equal to the offering price of
the U.S. Securities sold by such Selling Shareholder to the U.S.
Underwriters net of underwriting and selling commissions paid by such
Selling Shareholder under this Agreement. The Company and the Selling
Shareholders may agree, as among themselves and without limiting the
rights of the U.S. Underwriters under this U.S. Underwriting Agreement,
as to the respective amounts of such liability for which they each shall
be responsible.
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, the Selling Shareholders 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
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U.S. Representatives shall determine in order that the required changes in the
Registration Statement, the ADR Registration Statement and the Prospectuses or
in any other documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting U.S. Underwriter of its liability,
if any, to the Company, the Selling Shareholders 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 SGX-ST, trading
in securities generally on the New York Stock Exchange, The Nasdaq National
Market, Inc. or the SGX-ST 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, of each Selling Shareholder 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, any Selling Shareholders or the Company or any
of the officers, directors or controlling persons referred to in Section 9
hereof, and will survive delivery of and payment for the U.S. Securities. The
provisions of Sections 8 and 9 hereof shall survive the termination or
cancellation of this U.S. Underwriting Agreement.
13. Notices. All communications under this U.S. Underwriting
Agreement will be in writing and effective only on receipt, and, if sent to the
U.S. Representatives, will be mailed, delivered or telefaxed c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Inc. General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to such
General Counsel at ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, U.S.A., Attention: General Counsel; or, if sent to the Company,
will be mailed, delivered or telefaxed to the Legal Department (fax no.: (65)
▇▇▇-▇▇▇▇) and confirmed to it at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Attention: Legal Department; or if sent to any Selling
Shareholder, will be mailed, delivered or telefaxed and confirmed to it at the
address set forth in Schedule II hereto.
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, directors, employees, agents 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.
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33
15. Jurisdiction. Each of the Company and STS agrees that
any suit, action or proceeding against the Company brought by any U.S.
Underwriter, by the directors, officers, employees and agents of any U.S.
Underwriter or by any person who controls any U.S. Underwriter, arising out of
or based upon this U.S. Underwriting Agreement or the transactions contemplated
hereby may be instituted in any New York Court; and waives any objection which
it may now or hereafter have to the laying of venue of any such proceeding, and
irrevocably accepts and submits to the non-exclusive jurisdiction of such courts
in any suit, action or proceeding. Each of the Company and STS 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. Each of the Company and STS consents to process being served in any
action or proceeding by mailing a copy thereof by registered or certified mail
to the Authorized Agent. Each of the Company and STS 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 and STS. 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 each of the Company and the
Selling Shareholders 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 or the Selling Shareholder
making such payment 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
33
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entitled to receive such original amount will return such excess amounts, in the
relevant currency, to the Company or the Selling Shareholders. Any obligation of
the Company or the Selling Shareholders 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 or
the Selling Shareholders has or hereafter may acquire any immunity (sovereign or
otherwise) from any legal action, suit or proceeding, from jurisdiction of any
court or from set-off or any legal process (whether service or notice,
attachment in aid or otherwise) with respect to itself or any of its property,
each of the Company and each of the Selling Shareholders 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.
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35
"Execution Time" shall mean the date and time that this U.S.
Underwriting Agreement is executed and delivered by the parties hereto.
"International Offering Memorandum" shall mean such form of
offering memorandum relating to the International Securities.
"International Preliminary Offering Memorandum" shall mean any
preliminary offering memorandum with respect to the offering of the
International Securities.
"International Representatives" shall mean the addressees of the
International Underwriting Agreement.
"International Securities" shall mean the International
Underwritten Securities and the International Option Securities.
"International Underwriters" shall mean the several Underwriters
named in Schedule I to the International Underwriting Agreement.
"International Underwriting Agreement" shall mean the
International Underwriting Agreement dated the date hereof relating to
the sale of the International Securities by the Company and the selling
shareholders named therein 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 Offering Memorandum.
"Prospectuses" and "each Prospectus" shall mean the U.S.
Prospectus and the International Offering Memorandum.
"RCB" shall mean the Singapore Registrar of Companies and
Businesses.
"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.
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36
"Representatives" shall mean the U.S. Representatives and the
International Representatives.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under
the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Securities" shall mean the U.S. Securities and the
International Securities.
"Selling Shareholders" shall mean the persons named on Schedule
II to the U.S. Underwriting Agreement and, for purposes only of
calculating expenses payable pursuant to Section 5(I)(h), Schedule II to
the International Underwriting Agreement.
"Shares" shall mean the U.S. Shares and the International
Shares.
"Statement" shall mean the Statement of Material Facts filed
with the RCB.
"STS" shall mean Singapore Technologies Semiconductors Pte Ltd.
"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
and the International 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.
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37
"U.S." or "United States" shall mean the United States of
America (including the states thereof and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction.
"U.S. Preliminary Prospectus" shall mean any preliminary
prospectus with respect to the offering of the U.S. Securities referred
to in paragraph 1(a) above and any preliminary prospectus with respect
to the offering of the U.S. Securities, as the case may be, included in
the Registration Statement at the Effective Date that omits Rule 430A
Information.
"U.S. Prospectus" shall mean the prospectus relating to the U.S.
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"U.S. Representatives" shall mean the addressees of the U.S.
Underwriting Agreement.
"U.S. Securities" shall mean the U.S. Underwritten Securities
and the U.S. Option Securities.
"U.S. Underwriters" shall mean the several Underwriters named in
Schedule I to the U.S. Underwriting Agreement.
"U.S. Underwriting Agreement" shall mean this agreement relating
to the sale of the U.S. Securities by the Company and the Selling
Shareholders to the U.S. Underwriters.
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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, the Selling Shareholders and the several U.S. Underwriters.
Very truly yours,
Chartered Semiconductor Manufacturing
Ltd
By: /s/ CHIA SONG HWEE
------------------------------------
Name: Chia Song Hwee
Title: Senior Vice President and
Chief Financial Officer
Singapore Technologies Semiconductors Pte Ltd
By: /s/ PREMOD ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: Premod ▇▇▇▇ ▇▇▇▇▇▇
Title: Director, Finance
By: /s/ GAN CHEE YEN
------------------------------------
Name: Gan Chee Yen
Title: Group Financial Controller
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.
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39
ANNEX A
List of Subsidiaries
Chartered Semiconductor Manufacturing, Inc.
Chartered Silicon Partners Pte Ltd
40
SCHEDULE I
Number of
U.S. Underwriter U.S. Underwritten Shares
---------------- ------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. .......................... 27,560,400
Credit Suisse First Boston Corporation.............. 24,318,000
Chase Securities Inc. .............................. 9,727,200
▇▇ ▇▇▇▇▇ Securities Corporation..................... 9,727,200
Wit SoundView Corporation........................... 9,727,200
----------
Total............................................... 81,060,000
41
SCHEDULE II
Number of
Selling Shareholder U.S. Underwritten Shares
------------------- ------------------------
Singapore Technologies Semiconductors Pte Ltd........ 34,260,000
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇-▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
42
SCHEDULE III
List of Signatories to Letter Attached as Exhibit A
---------------------------------------------------
1. Singapore Technologies Pte Ltd
2. Alliance Semiconductor Corporation
3. Analog Devices, Inc.
4. Actel Corporation
43
EXHIBIT A
Chartered Semiconductor Manufacturing Ltd
Public Offering of Ordinary Shares
May , 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Salomon Brothers International Limited
Credit Suisse First Boston Corporation
Credit Suisse First Boston (Singapore) Limited
Chase Securities Inc.
Chase Manhattan International Limited
Overseas Union Bank Limited
▇▇ ▇▇▇▇▇ Securities Corporation
SG Securities (Singapore) Pte. Ltd.
▇▇▇▇▇▇▇ Ballas & Company Pte Ltd
Wit SoundView Corporation
As Representatives of the several U.S. Underwriters
and International Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed U.S. Underwriting Agreement and International Underwriting Agreement
(the "Underwriting Agreements"), between Chartered Semiconductor Manufacturing
Ltd, a corporation organized under the laws of Singapore (the "Company"), the
Selling Shareholders named therein (the "Selling Shareholders"), and you as
representatives of the group of U.S. and International Underwriters named
therein, relating to an underwritten public offering of ordinary shares (the
"Ordinary Shares") of the Company, directly or in the form of American
Depositary Shares ("ADSs").
In order to induce you and the other U.S. Underwriters and
International Underwriters to enter into the Underwriting Agreements, the
undersigned will not, without the prior consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.,
offer, sell, contract to sell, pledge or otherwise dispose of (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise), directly or indirectly, or announce the offering of, any Ordinary
Shares or ADSs or any securities convertible into, or exercisable or
exchangeable for, Ordinary Shares or ADSs, for a period of 120 [90] days
following the date of the Underwriting Agreements, other than Ordinary Shares or
ADSs [(i)] disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ ▇▇▇▇▇
44
Barney Inc. [or (ii) used by the undersigned in the acquisition of the equity
capital or substantially all of the assets of any other person or entity;
provided that such other person or entity agrees to enter into a lock-up
agreement with you that is substantially similar to this letter for the
remaining portion of such 90-day period and such acquisition is approved by
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.](1)
If for any reason the Underwriting Agreements shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreements), the
agreement set forth above shall likewise be terminated.
Yours very truly,
[Signature]
[Name and address]
----------
1 Use bracketed text for all signatories other than ST.
45
APPENDIX A
[LEGAL OPINION OF ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇]
▇-▇
▇▇
▇▇▇▇▇▇▇▇ ▇
[LEGAL OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇]
B-1