Exhibit 1.1
FORM OF UNDERWRITING AGREEMENT
ADVANCED SEMICONDUCTOR ENGINEERING, INC.
28,757,600 AMERICAN DEPOSITARY SHARES
REPRESENTING
143,788,000 COMMON SHARES
(PAR VALUE NT$10 PER SHARE)
UNDERWRITING AGREEMENT
April __, 2003
▇▇▇▇▇▇▇ ▇▇▇▇▇ International,
As representative of the several Underwriters
named in Schedule I hereto,
Peterborough Court,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇.
Ladies and Gentlemen:
The shareholders named in Schedule II hereto (the "Selling Shareholders")
of Advanced Semiconductor Engineering, Inc., a company limited by shares (the
"Company") and duly organized and existing under the laws of the Republic of
China (the "ROC"), propose, subject to the terms and conditions stated herein,
to sell to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 28,757,600 American Depositary Shares representing 143,788,000
common shares, par value NT$10 per share (the "Common Shares"), of the Company.
ASE Capital Inc., a wholly-owned subsidiary of the Company and one of the
Selling Shareholders ("ASE Capital"), proposes, subject to the terms and
conditions stated herein, to sell at the election of the Underwriters, up to
4,000,000 additional American Depositary Shares representing 20,000,000 Common
Shares of the Company. The aggregate of 28,757,600 American Depositary Shares
representing 143,788,000 Common Shares to be sold by the Selling Shareholders
are herein called the "Firm ADSs" and the aggregate of 4,000,000 additional
American Depositary Shares representing 20,000,000 additional Common Shares to
be sold by ASE Capital at the election of the Underwriters are herein called the
"Optional ADSs". The Firm ADSs and the Optional ADSs that the Underwriters elect
to purchase pursuant to Section 2 hereof are herein collectively called the
"ADSs". The Common Shares represented by the Firm ADSs are hereinafter called
the "Firm Shares" and the Common Shares represented by the Optional ADSs are
hereinafter called the "Optional Shares" and the Firm Shares and the Optional
Shares are herein collectively called the "Shares".
The ADSs are to be issued pursuant to an amended and restated deposit
agreement (the "Deposit Agreement"), dated as of September 29, 2000, among the
Company, Citibank, N.A., as depositary (the "Depositary"), and holders and
beneficial owners from time to time of the American Depositary Receipts (the
"ADRs") issued by the Depositary and evidencing the ADSs. Each ADS will
represent the right to receive five Common Shares deposited pursuant to the
Deposit Agreement.
It is understood by the parties that the Underwriters are offering ADSs in
the United States and internationally outside of the ROC.
1. (I) The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form F-3 (File No. 333-89428) in
respect of the Shares has been filed with the U.S. Securities and Exchange
Commission (the "Commission"); such registration statement and any
post-effective amendment thereto, each in the form heretofore delivered to
you, and, excluding exhibits thereto but including all documents
incorporated by reference in the prospectus contained therein, to you for
each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the U.S. Securities Act of
1933, as amended (the "Act"), which became effective upon filing, no other
document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of such
registration statement, any post-effective amendment thereto or the Rule
462(b) Registration Statement, if any, has been issued and, to the
knowledge of the Company, no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus included in
such registration statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Act is
hereinafter called a "Preliminary Prospectus"); the various parts of such
registration statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and including (i) the information contained
in the form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(I)(a) hereof and deemed
by virtue of Rule 430A under the Act to be part of the registration
statement at the time it was declared effective and (ii) the documents
incorporated by reference in the prospectus contained in the registration
statement at the time such registration statement became effective, each as
amended at the time such part of the registration statement became
effective, or such part of the Rule 462(b) Registration Statement, if any,
became or hereafter becomes effective, are hereinafter collectively called
the "Registration Statement"; such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Act is hereinafter called the
"Prospectus"; and any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 6 of Form F-3 under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the U.S. Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
initial registration statement that is incorporated by reference in the
Registration Statement;
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
you expressly for use therein;
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all
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material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and any further documents so
filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through you expressly for use
therein;
(d) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder, and the
Registration Statement and the Prospectus will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through you expressly for use
therein;
(e) A registration statement on Form F-6 (File No. 333-12468) in
respect of the ADSs has been filed with the Commission; such registration
statement in the form heretofore delivered to you and, excluding exhibits,
to you for each of the other Underwriters, has been declared effective by
the Commission in such form; no other document with respect to such
registration statement has heretofore been filed with the Commission; no
stop order suspending the effectiveness of such registration statement has
been issued and to the knowledge of the Company no proceeding for that
purpose has been initiated or threatened by the Commission (such
registration statement, including all exhibits thereto, each as amended at
the time such registration statement became effective, being hereinafter
called the "ADS Registration Statement"); and the ADS Registration
Statement when it became effective conformed, and any further amendments
thereto will conform, in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder, and did
not, as of the applicable effective date, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
(f) Neither the Company nor any of its subsidiaries named in Schedule
III hereto (the "Significant Subsidiaries") has sustained since the date of
the latest audited financial statements included or incorporated by
reference in the Prospectus any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus
that would, individually or in the aggregate, reasonably be expected to
have a material adverse effect on the condition (financial or otherwise) or
in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole ("Material Adverse Effect"); and, since the
respective dates as
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of which information is given in the Registration Statement and the
Prospectus, there has not been any decrease in the capital stock, increase
in short-term debt or long-term debt of the Company or any of its
Significant Subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus; and
other than the Significant Subsidiaries, no other subsidiary of the Company
is a "Significant Subsidiary" as defined in Regulation S-X under the Act;
(g) The Company and the Significant Subsidiaries have good and
marketable title to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects or such as do not materially affect the value of
such property and do not interfere with the use made and proposed to be
made of such property by the Company and the Significant Subsidiaries; and
any real property and buildings held under lease by the Company and the
Significant Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and the Significant Subsidiaries in each case
except as described in or contemplated by the Prospectus;
(h) The Company has been duly incorporated and is validly existing as
a company limited by shares formed under the laws of the ROC, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification,
except where the failure to be so qualified would not, individually or in
the aggregate, have a Material Adverse Effect; and each of the Significant
Subsidiaries has been duly incorporated and is validly existing as a
corporation under the laws of its jurisdiction of incorporation;
(i) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
(including the Shares) have been duly and validly authorized and issued,
are fully paid and non-assessable and conform in all material respects to
the description of the Common Shares contained in the Prospectus; and all
of the issued shares of capital stock of each of the Significant
Subsidiaries have been duly and validly authorized and issued, are fully
paid and non-assessable and, other than as set forth in the Prospectus, are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims of which the Company is aware; all of the
issued and outstanding Common Shares (including the Shares) have been duly
listed and admitted for trading on the Taiwan Stock Exchange (the "Taiwan
Stock Exchange"); the holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights to acquire the
Shares or the ADSs; there are no outstanding securities convertible into or
exchangeable for, or warrants, rights or options to purchase from the
Company, or obligations of the Company to issue, the Common Shares or any
other class of capital stock of the Company; other than the US$160,000,000
1% Guaranteed Convertible Notes due July 1, 2004 issued by ASE Test Finance
Limited, there are no outstanding securities convertible into or
exchangeable for, or warrants, rights or options to purchase from the
Company's subsidiaries, or obligations of the Company's subsidiaries to
issue, any class of capital stock; the Shares may be freely deposited by
the Selling Shareholders with the Depositary against issuance of ADRs
evidencing ADSs; the ADSs are freely transferable by the Selling
Shareholders to or for the account of the several Underwriters and (to the
extent described in the Prospectus) the initial purchasers thereof; and
there are no restrictions on subsequent
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transfers of the Shares and ADSs under the laws of the ROC and of the
United States, except as described in the Prospectus under the captions
"Description of Common Shares", "Description of American Depositary
Receipts" or "Annex B--Foreign Investment and Exchange Controls in the
ROC";
(j) The Deposit Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and general equity
principles; upon issuance by the Depositary of ADRs evidencing ADSs against
the deposit of Shares in respect thereof in accordance with the provisions
of the Deposit Agreement, such ADRs will be duly and validly issued, the
persons in whose names the ADRs are registered will be entitled to the
rights specified therein and in the Deposit Agreement; and the Deposit
Agreement and the ADRs conform in all material respects to the descriptions
thereof contained in the Prospectus;
(k) Other than as set forth or contemplated in the Prospectus, no
consents, approvals, authorizations, orders of, registrations, clearances
by or qualifications of or with any court or governmental agency or body or
any stock exchange authorities (hereinafter referred to as a "Governmental
Agency") having jurisdiction over the Company or any of the Significant
Subsidiaries or any of their properties (hereinafter referred to as
"Governmental Authorizations") are required for the sale of the Shares and
the ADSs, for the deposit of Shares with the Depositary and for the
execution and delivery by the Company of this Agreement and the Deposit
Agreement to be duly and validly authorized except for (A) registration of
the Shares and the ADSs under the Act, and any filings required under Rule
424 of the Act, (B) the approval of the Central Bank of China (the "CBC")
of foreign exchange settlements and payments contemplated by the Deposit
Agreement, (C) the filings and approvals, if any, required under (1) the
Key Points for Handling Issuance and Offer of Overseas Securities by
Issuers of the ROC (the "Overseas Offering Rules"), (2) the Securities and
Exchange Law of the ROC and the Company Law of the ROC, and (3) the rules
and regulations of the Taiwan Stock Exchange, the Securities and Futures
Commission of the ROC (the "SFC") and the CBC, (D) any governmental
authorizations as may be required under state securities or Blue Sky laws
of the United States or the laws of other jurisdictions outside the ROC in
connection with the purchase and distribution of the ADSs by or for the
account of the Underwriters and (E) such Governmental Authorizations that
have been obtained and are in full force and effect;
(l) Other than as set forth in the Prospectus, no governmental
approvals are currently required in the ROC in order for the Company to pay
dividends or other distributions declared by the Company to holders of
Common Shares, including the Depositary, or for the conversion by the
Depositary of any dividends paid in New Taiwan dollars ("NT dollars") to
U.S. dollars or the transfer thereof out of the ROC and no other
withholding or other taxes under the laws and regulations of the ROC are
currently required to be imposed in connection with the declaration and
payment by the Company of dividends and other distributions in respect of
its capital stock;
(m) The sale of the ADSs to be sold by the Selling Shareholders
hereunder, the deposit of the Shares with the Depositary against issuance
of the ADRs evidencing the ADSs and the compliance by the Company with all
of the provisions of this Agreement and the Deposit Agreement, and the
consummation of the transactions herein and therein contemplated, will not
conflict with or result in a breach or violation of any of the terms or
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provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other material agreement or instrument to which
the Company or any of the Significant Subsidiaries is a party or by which
the Company or any of the Significant Subsidiaries is bound or to which any
of the property or assets of the Company or any of the Significant
Subsidiaries is subject other than any such conflicts, breaches, violations
or defaults which, individually or in aggregate, would not have a Material
Adverse Effect, nor will such action result in any violation of the
provisions of the constituent documents of the Company or any of the
Significant Subsidiaries or any statute or any order, rule or regulation of
any Governmental Agency having jurisdiction over the Company or any of the
Significant Subsidiaries or any of their properties, including the
Securities and Exchange Law of the ROC and the Company Law of the ROC and
the regulations promulgated thereunder;
(n) Neither the Company nor any of the Significant Subsidiaries is in
violation of its constituent documents or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound except such violations or defaults which
individually or in aggregate would not have a Material Adverse Effect;
(o) Other than as set forth in the Prospectus, so long as this
Agreement and any cross receipt or any other documents which are deemed
"receipts" under the ROC Stamp Tax Law are executed outside the ROC, no
stamp or other issuance or transfer taxes or duties and no capital gains,
income, withholding or other taxes (except such income taxes as may be
imposed by the government of the ROC or any political subdivision or taxing
authority thereof or therein on payments hereunder to any Underwriter whose
net income is subject to tax by the ROC or withholding, if any, with
respect to any such income tax) are payable by or on behalf of the
Underwriters to the government of the ROC or any political subdivision or
taxing authority thereof or therein in connection with (A) the deposit with
the Depositary of Shares by the Selling Shareholders against the issuance
of ADRs evidencing ADSs, (B) the sale and delivery by the Selling
Shareholders of the ADSs to or for the respective accounts of the
Underwriters as contemplated in the Prospectus and pursuant to the terms of
this Agreement, (C) the sale and delivery outside the ROC by the
Underwriters of the ADSs to the initial purchasers thereof, or (D) the
execution and delivery of this Agreement and the Deposit Agreement;
(p) Neither the Company nor any of its subsidiaries has taken,
directly or indirectly, any action which was designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares and ADSs;
(q) The statements set forth in the Prospectus under the captions
"Description of Common Shares" and "Description of American Depositary
Receipts", insofar as they purport to constitute a summary of the terms of
the Common Shares and the ADSs, respectively, and under the captions
"Taxation", "Underwriting", "Annex A--The Securities Market of the ROC" and
"Annex B--Foreign Investment and Exchange Controls in the ROC", insofar as
they purport to summarize the provisions of the laws and documents referred
to therein, are accurate, complete and fair in all material respects;
(r) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of the
Significant Subsidiaries is a party or of which any property of the Company
or any of the Significant Subsidiaries is the subject which, if determined
adversely to the Company or any of the Significant Subsidiaries, would
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individually or in the aggregate have a Material Adverse Effect; and, to
the best of the Company's knowledge, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others;
(s) The Company is not and, after giving effect to the offering and
sale of the ADSs, will not be an "investment company", under the Investment
Company Act of 1940, as amended (the "Investment Company Act");
(t) Each of the Company and the Significant Subsidiaries has all
licenses, franchises, consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations and
filings with, all Governmental Agencies having jurisdiction over the
Company or any of the Significant Subsidiaries, as applicable, necessary to
own, lease, license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, other than any such
licenses, franchises, consents, authorizations, approvals, orders,
certificates or permits the failure to possess any of which would not
individually or in the aggregate have a Material Adverse Effect;
(u) The Company believes that it was not a Passive Foreign Investment
Company ("PFIC") within the meaning of Section 1297(a) of the United States
Internal Revenue Code of 1986, as amended, for its most recent taxable
year, and the Company has no plans or intention to take any action that
would result in the Company becoming a PFIC in the future;
(v) T. N. ▇▇▇▇▇ & Co., an Associate Member Firm of Deloitte Touche
Tohmatsu effective April 22, 2002, who have certified certain financial
statements of the Company and its subsidiaries, are the independent public
accountants of the Company as required by the Act and the rules and
regulations of the Commission thereunder;
(w) Since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, neither the Company nor any
of its subsidiaries has (A) entered into or assumed any contract, (B)
incurred or agreed to incur any liability (including any contingent
liability) or other obligation, (C) acquired or disposed of or agreed to
acquire or dispose of any business or any other asset or (D) assumed or
acquired or agreed to assume or acquire any liabilities (including
contingent liabilities) that would be material to the Company and its
subsidiaries, taken as a whole, and that are not otherwise described in the
Prospectus;
(x) Each of this Agreement and the Deposit Agreement is in proper
form to be enforceable against the Company in the ROC in accordance with
its terms; to ensure the legality, validity, enforceability or
admissibility into evidence in the ROC of this Agreement or the Deposit
Agreement, it is not necessary that this Agreement or the Deposit Agreement
be filed or recorded with any court or other authority in the ROC or that
any stamp or similar tax in the ROC be paid on or in respect of this
Agreement, the Deposit Agreement or any other documents to be furnished
hereunder, it being understood that in court proceedings in the ROC, a
translation into the Chinese language may be required;
(y) Other than as set forth in the Prospectus, each of the Company
and the Significant Subsidiaries owns or has valid licenses in full force
and effect or otherwise has the legal right to use, or can acquire on
reasonable terms, all patents, patent licenses, inventions, trademarks,
service marks, trade names, domain names, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), information, proprietary
rights and processes ("Intellectual Property")
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necessary to conduct its business as presently conducted and as proposed to
be conducted; neither the Company nor any of the Significant Subsidiaries
has received any written notice or claim of infringement of or conflict
with asserted rights of others with respect to any Intellectual Property,
which notice or claim remains in dispute and which is reasonably likely to
result in a Material Adverse Effect;
(z) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company or to include any securities of the Company with
the Shares registered pursuant to the Registration Statement or the ADSs
registered pursuant to the ADS Registration Statement, except as described
in the Prospectus or as have been validly waived in writing in connection
with the offering of the ADSs contemplated hereby;
(aa) Under the laws of the ROC, each holder of ADRs evidencing ADSs
issued pursuant to the Deposit Agreement shall be entitled, subject to the
Deposit Agreement, to seek enforcement of its rights through the Depositary
or its nominee registered as the holder of the Common Shares underlying the
ADSs and recognized as the representative of the holders of the ADRs in a
direct suit, action or proceeding against the Company;
(bb) Except as described in the Prospectus or this Agreement, all
amounts payable by the Company in respect of the ADRs evidencing the ADSs
or the underlying Shares shall be made free and clear of and without
deduction for or on account of any taxes imposed, assessed or levied by the
ROC or any authority thereof or therein (except such income taxes as may be
imposed by the ROC on payments hereunder to any Underwriter whose net
income is subject to tax by the ROC or withholding, if any, with respect to
any such income tax) nor are any taxes imposed in the ROC on, or by virtue
of the execution or delivery of, such documents;
(cc) The audited consolidated financial statements (and the notes
thereto) of the Company and its consolidated subsidiaries included or
incorporated by reference in the Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries as of the dates
indicated and the results of operations and changes in financial position
of the Company and its consolidated subsidiaries for the periods specified,
and such financial statements have been prepared in conformity with
generally accepted accounting principles in the ROC applied on a consistent
basis throughout the periods presented (other than as described therein);
and the summary and selected financial information, including the selected
unaudited quarterly financial information, included or incorporated by
reference in the Prospectus present fairly the information shown therein
and have been compiled on a basis consistent with that of the audited
financial statements included therein;
(dd) This Agreement has been duly authorized, executed and delivered
by the Company;
(ee) The section entitled "Management's Discussion and Analysis of
Financial Condition and Results of Operations" in the Prospectus accurately
and fully describes (i) accounting policies which the Company believes are
the most important in the portrayal of the Company's financial condition
and results of operations and which require management's most difficult,
subjective or complex judgements ("critical accounting policies"); (ii)
judgements and uncertainties affecting the application of critical
accounting policies; and (iii) the likelihood that materially different
amounts would be reported under different conditions or using different
assumptions and an explanation thereof;
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(ff) The Company's Board of Directors and management have reviewed and
agreed with the selection, application and disclosure of critical
accounting policies and have consulted with its legal advisers and
independent accountants with regards to such disclosure;
(gg) The section entitled "Management's Discussion and Analysis of
Financial Condition and Results of Operations--Liquidity and Capital
Resources" in the Prospectus accurately and fully describes all material
trends, demands, commitments, events, uncertainties and risks, and the
potential effects thereof, that the Company believes would materially
affect liquidity and are reasonably likely to occur. Neither the Company
nor any of its subsidiaries are engaged in any transactions with, or have
any obligations to, any unconsolidated entities that are contractually
limited to narrow activities that facilitate the transfer of or access to
assets by the Company or any of its subsidiaries, including, without
limitation, structured finance entities and special purpose entities, or
otherwise engage in, or have any obligations under, any off-balance sheet
transactions or arrangements. As used herein in this Section 1, the phrase
"reasonably likely" refers to a disclosure threshold lower than "more
likely than not";
(hh) Except as set forth in the Prospectus, neither the Company nor
any of its subsidiaries is engaged in any trading activities involving
commodity contracts or other trading contracts which are not currently
traded on a securities or commodities exchange and for which the market
value cannot be determined; and
(ii) Except as set forth in the Prospectus, neither the Company nor
any of its subsidiaries is engaged in any material transactions with its
directors, officers, management, shareholders, or any other person,
including persons formerly holding such positions, on terms that are not
available to other parties on an arm's-length basis.
(II) The Company and each of the Selling Shareholders hereby jointly and
severally represent and warrant to, and agree with, each of the Underwriters
that:
(a) Such Selling Shareholder has been duly incorporated and is
validly existing as a company limited by shares formed under the laws of
the ROC;
(b) Other than as set forth or contemplated in the Prospectus, no
consents, approvals, authorizations, orders of, registrations, clearances
by or qualifications of or with any Governmental Agency having jurisdiction
over such Selling Shareholder or any of its properties are required for the
deposit of the Shares with the Depositary, for the sale and delivery of the
ADSs representing the Shares to be sold by such Selling Shareholder
hereunder, and for the execution, delivery and performance by such Selling
Shareholder of this Agreement to be duly and validly authorized, except for
(A) registration of the Shares and ADSs under the Act and any filings
required by Rule 424 under the Act, (B) any governmental authorizations as
may be required under state securities or Blue Sky laws of the United
States or the laws of other jurisdictions outside the ROC in connection
with the purchase and distribution of the ADSs by or for the account of the
Underwriters, (C) such consents, approvals, authorizations, orders,
registrations, clearances or qualifications which have been obtained and
which are in full force and effect; the Shares may be freely deposited by
such Selling Shareholder with the Depositary against issuance of ADRs
evidencing ADSs; and such Selling Shareholder has the corporate right,
power and authority to enter into this Agreement and to sell, assign,
transfer and deliver the ADSs representing the Shares to be sold by such
Selling Shareholder hereunder; and this Agreement has been duly authorized,
executed and delivered by such Selling Shareholder;
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(c) The sale of the ADSs representing the Shares to be sold by such
Selling Shareholder hereunder, the deposit of the Shares with the
Depositary against issuance of the ADRs evidencing the ADSs to be delivered
at each Time of Delivery, the compliance by such Selling Shareholder with
all of the provisions of this Agreement and the Deposit Agreement and the
consummation of the transactions herein and therein contemplated will not
(1) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which such
Selling Shareholder is a party or by which such Selling Shareholder is
subject, other than any such conflict, breach, violation or default that
would not, individually or in the aggregate, have a material adverse effect
on the ability of such Selling Shareholder to perform its obligations under
this Agreement (2) result in any violation of the provisions of any statute
or any order, rule or regulation of any Governmental Agency having
jurisdiction over such Selling Shareholder or property of such Selling
Shareholder other than any such violation that would not, individually or
in the aggregate, have a material adverse effect on the ability of such
Selling Shareholder to perform its obligations under this Agreement or the
Deposit Agreement, and (3) violate any provision of the Articles of
Incorporation of such Selling Shareholder;
(d) Such Selling Shareholder has, and immediately prior to each Time
of Delivery such Selling Shareholder will have, good and valid title to the
Shares and the ADSs to be sold by such Selling Shareholder hereunder, free
and clear of all liens, encumbrances, equities or claims; and assuming that
(A) DTC (as defined in Section 4 hereof) is a "protected purchaser" (as
defined in Section 8-303 of the Uniform Commercial Code as adopted in the
State of New York (the "Code")) of the ADSs and a "securities intermediary"
(as defined in Section 8-102 of the Code) and (B) the Underwriters have
acquired, pursuant to Section 8-501 of the Code and the terms and
provisions of the Underwriting Agreement, their "security entitlement" (as
defined in Section 8-102 of the Code) in the ADSs for "value" (as defined
in Section 1-201 of the Code) and without notice of an "adverse claim" (as
defined in Section 8-102 of the Code), no action based on an adverse claim
to such ADSs, whether framed in conversion, replevin, constructive trust,
equitable lien, or other theory, may be asserted against any such
Underwriter;
(e) Such Selling Shareholder has not taken, directly or indirectly,
any action which is designed to or which has constituted or which might
reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares or ADSs;
(f) The ADSs delivered at the applicable Time of Delivery will be
freely transferable by such Selling Shareholder to or for the account of
the several Underwriters and (to the extent described in the Prospectus) to
the initial purchasers thereof; and there are no restrictions on subsequent
transfers of the Shares or ADSs under the laws of the ROC and of the United
States except as described in the Prospectus under the captions
"Description of Common Shares", "Description of American Depositary
Receipts" or "Annex B - Foreign Investment and Exchange Controls in the
ROC";
(g) Other than as set forth in the Prospectus and so long as this
Agreement, and any cross receipt or any other documents which are deemed
"receipts" under the ROC Stamp Tax Law, are executed outside the ROC, no
stamp or other issuance or transfer taxes or duties and no capital gains,
income, withholding or other taxes (except such income taxes as
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may be imposed by the government of the ROC or any political subdivision or
taxing authority thereof or therein on payments hereunder to any
Underwriter whose net income is subject to tax by the ROC or withholding,
if any, with respect to any such income tax) are payable by or on behalf of
the Underwriters to the government of the ROC or any political subdivision
or taxing authority thereof or therein in connection with (A) the deposit
with the Depositary of Shares by such Selling Shareholder against the
issuance of ADRs evidencing ADSs, (B) the sale and delivery by such Selling
Shareholder of the ADSs representing the Shares to or for the respective
accounts of the Underwriters as contemplated in the Prospectus and pursuant
to the terms of this Agreement, (C) the sale and delivery outside the ROC
by the Underwriters of the ADSs representing the Shares to the initial
purchasers thereof pursuant to the terms of this Agreement or (D) the
execution and delivery of this Agreement;
(h) This Agreement is in proper form to be enforceable against such
Selling Shareholder in the ROC in accordance with its terms; to ensure the
legality, validity, enforceability or admissibility into evidence in the
ROC of this Agreement, it is not necessary that this Agreement be filed or
recorded with any court or other authority in the ROC or that any stamp or
similar tax in the ROC be paid on or in respect of this Agreement or any
other documents to be furnished hereunder, it being understood that in
court proceedings in the ROC, a translation into the Chinese language may
be required;
(i) To the extent that any statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity
with written information furnished to the Company by such Selling
Shareholder expressly for use therein, (A) such Preliminary Prospectus, at
the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; and (B) such Registration Statement
conforms, and such Prospectus and any further amendments or supplements to
such Registration Statement or such Prospectus will conform, in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and such Registration Statement
and such Prospectus will not, as of the applicable effective date as to
such Registration Statement and any amendment thereto and as of the
applicable filing date as to such Prospectus and any amendment or
supplement thereto, contain an 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;
(j) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Shareholder will deliver to you prior to or at
the applicable Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-8 or W-9
(or other applicable form or statement specified by Treasury Department
regulations in lieu thereof); and
(k) All amounts payable by such Selling Shareholder under this
Agreement shall be made free and clear of and without deduction for or on
account of any taxes imposed, assessed or levied by the ROC (except such
income taxes as may be imposed by the ROC on payments hereunder to any
Underwriter whose net income is subject to tax by the ROC or withholding,
if any, with respect to any such income tax) or any authority thereof or
therein
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except as described in the Prospectus nor are any taxes imposed in the ROC
on, or by virtue of the execution or delivery of, such documents.
2. Subject to the terms and conditions herein set forth, (a) the Selling
Shareholders agree, severally and not jointly, to sell to the Underwriters, and
the Company agrees to cause such Selling Shareholders to sell to each of the
Underwriters, the number of Firm ADSs set forth opposite the name of such
Selling Shareholders, respectively, in Schedule II hereto, and each of the
Underwriters agrees, severally and not jointly, to purchase from such Selling
Shareholders at a purchase price per ADS of US$o, the number of Firm ADSs set
forth opposite the name of such Underwriters in Schedule I hereto, and (b) in
the event and to the extent that the Underwriters shall exercise the election to
purchase Optional ADSs as provided below, ASE Capital agrees to sell to each of
the Underwriters, and the Company agrees to cause ASE Capital to sell to each of
the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from ASE Capital at the purchase price per ADS set forth in
clause (a) of this Section 2, that portion of the number of Optional ADSs as to
which such election shall have been exercised (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying such number of Optional
ADSs by a fraction the numerator of which is the maximum number of Optional ADSs
which such Underwriter is entitled to purchase as set forth opposite the name of
such Underwriter in Schedule I hereto and the denominator of which is the
maximum number of Optional ADSs that all of the Underwriters are entitled to
purchase hereunder.
ASE Capital hereby grants to the Underwriters the right to purchase at
their election up to [4,000,000] Optional ADSs, at the purchase price per ADS
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of Firm ADSs. Any such election to purchase Optional
ADSs may be exercised only by written notice from you to the Company and ASE
Capital, given within a period of 30 calendar days after the date of this
Agreement and setting forth the aggregate number of Optional ADSs to be
purchased and the date on which such Optional ADSs are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you, ASE Capital and the Company
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
3. Upon the authorization by you of the release of the Firm ADSs, the
several Underwriters propose to offer the Firm ADSs for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) ADRs evidencing the ADSs to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as you may request upon at least forty-eight hours
notice to the Company and the Selling Shareholders prior to a Time of
Delivery (as defined below) (the "Notification Time"), shall be delivered
by or on behalf of the Selling Shareholders to you, through the facilities
of The Depository Trust Company ("DTC"), for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
account(s) specified by the Selling Shareholders to you at least
forty-eight hours in advance.
The time and date of such delivery and payment shall be, with respect
to the Firm ADSs, 9:30 a.m., New York City time, on ___, 2003 or such other
time and date as you and the Selling Shareholders may agree upon in
writing, and, with respect to the Optional ADSs, 9:30 a.m., New York City
time, on the date specified by you in the written notice given by you of
the Underwriters' election to purchase such Optional ADSs, or such other
time and date as you
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and ASE Capital may agree upon in writing. Such time and date for delivery
of the Firm ADSs is herein called the "First Time of Delivery", such time
and date for delivery of the Optional ADSs, if not the First Time of
Delivery, is herein called the "Second Time of Delivery", and each such
time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Shares and ADSs and any additional documents
requested by the Underwriters pursuant to Section 7(r) hereof, will be
delivered at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (the "Closing Location"), and the ADSs will
be delivered as specified in Section (a) above, all at such Time of
Delivery. A meeting will be held at the Closing Location at 9:00 p.m., Hong
Kong time, on the next New York Business Day preceding such Time of
Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for review
by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. (I) The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second New York Business Day
following the execution and delivery of this Agreement, or, if applicable,
such earlier time as may be required by Rule 430A(a)(3) under the Act; to
make no further amendment or any supplement to the Registration Statement
or Prospectus which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice thereof,
of the time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish you copies thereof; to file
promptly all reports required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of
a prospectus is required in connection with the offering or sale of the
ADSs; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus, of the
suspension of the qualification of the ADSs for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
prospectus or suspending any such qualification, promptly to use its best
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the ADSs for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the ADSs, provided that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
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(c) Prior to 12:00 noon, New York City time, on the New York Business
Day next succeeding the date of this Agreement and from time to time, to
furnish the Underwriters with written and electronic copies of the
Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus is required at any time prior
to the expiration of nine months after the time of issue of the Prospectus
in connection with the offering or sale of the ADSs and if at such time any
events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference to the Prospectus in order to comply with the Act
or the Exchange Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many written and electronic copies as you
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission
or effect such compliance, and in case any Underwriter is required to
deliver a prospectus in connection with sales of any of the ADSs at any
time nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter, to prepare and deliver
to such Underwriter as many written and electronic copies as you may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, not to
offer, sell, contract to sell, pledge, grant any option to purchase, make
any short sale or otherwise dispose of, except as provided hereunder and
under this Agreement: (i) any Common Shares or ADSs or any securities of
the Company that are substantially similar to the Common Shares or ADSs,
including but not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Common Shares or
ADSs or any such substantially similar securities; and (ii) any common
shares of its subsidiaries or controlled affiliates or depositary shares or
depositary receipts representing such common shares, including but not
limited to any securities that are convertible into or exchangeable for or
that represent the right to receive such common shares or such depositary
shares or depositary receipts or any such substantially similar securities
(in each case other than pursuant to employee stock option plans existing
on, or upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement and which are
described in the Prospectus), without your prior written consent, except
for ADSs and Common Shares represented thereby being sold hereunder, Common
Shares to be issued by the Company pursuant to any stock dividend payable
to all holders of Common Shares (including Common Shares represented by the
ADSs) as of a record date subsequent to the date of the Prospectus and
employee bonus shares relating to the Company's fiscal year ended December
31, 2002 approved at its annual general meeting of shareholders held on __,
2003;
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(f) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, to cause
each of its subsidiaries and controlled affiliates not to offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale
or otherwise dispose of, except as provided hereunder and under this
Agreement: (i) any Common Shares or ADSs or any securities of the Company
that are substantially similar to the Common Shares or ADSs, including but
not limited to any securities that are convertible into or exchangeable
for, or that represent the right to receive, Common Shares or ADSs or any
such substantially similar securities; and (ii) any common shares of such
subsidiaries or controlled affiliates or depositary shares or depositary
receipts representing such common shares, including but not limited to any
securities that are convertible into or exchangeable for or that represent
the right to receive such common shares or such depositary shares or
depositary receipts or any such substantially similar securities (in each
case other than pursuant to (1) employee stock option plans existing on the
date of this Agreement and which are described in the Prospectus, (2) upon
the conversion or exchange of convertible or exchangeable securities
outstanding as of the date of this Agreement and which are described in the
Prospectus or (3) the sale of any Common Shares held by the Selling
Shareholders subsequent to 30 days after the date of the Prospectus),
without your prior written consent, except for equity securities whose
issuance and sale by any subsidiary or controlled affiliate will not result
in a decrease of the Company's beneficial ownership interest in that
subsidiary or controlled affiliate and common shares of Universal
Scientific Industrial Co., Ltd. not in excess of 25% of its outstanding
ordinary shares as of the date of the Prospectus (or depositary receipts
representing up to the number of its ordinary shares, or debt or other
securities initially convertible into not more than the number of shares or
depositary receipts);
(g) To furnish to the Depositary for mailing to holders of record of
ADSs (i) as soon as practicable after the end of each fiscal year an annual
report (including a balance sheet and statements of income, shareholders'
equity and cash flows of the Company and its consolidated subsidiaries
certified by independent public accountants and prepared in conformity with
generally accepted accounting principles in the ROC ("ROC GAAP") together
with a reconciliation of net income and total stockholders' equity to
generally accepted accounting principles in the U.S. ("U.S. GAAP")) and
(ii) as soon as practicable after the end of the relevant period, such
semi-annual reports that are made available or are required to be made
available to shareholders and consolidated summary financial information of
the Company and its subsidiaries for the relevant period in reasonable
detail;
(h) During a period of two years from the effective date of the
Registration Statement, to furnish to you as soon as they are available,
copies of any reports and financial statements furnished to or filed with
the Commission or any securities exchange on which any class of securities
of the Company is listed and which are not otherwise publicly available
directly on the Company's website;
(i) To use the net proceeds received by it from the sale of the ADSs
pursuant to this Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds";
(j) Prior to each Time of Delivery, to cause the Selling Shareholders
to deposit the Shares with the Depositary in accordance with the provisions
of the Deposit Agreement and otherwise to comply with the Deposit Agreement
so that ADRs evidencing ADSs will be
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executed (and, if applicable, countersigned) and issued by the Depositary
against receipt of such Shares and delivered to the purchasers at such Time
of Delivery;
(k) Until the distribution of the ADSs has been completed, not to (and
to cause its subsidiaries not to) take, directly or indirectly, any action
which is designed to or which constitutes or which might reasonably be
expected to cause or result in stabilization or manipulation of the price
of any security of the Company or facilitate the sale or resale of the
Shares and the ADSs;
(l) To use its best efforts to list, subject to notice of issuance,
the Shares and ADSs on the NYSE; and
(m) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, service marks and corporate logo for use on the website, if
any, operated by such Underwriter for the purpose of facilitating the
on-line offering of the ADSs (the "License"); provided, however, that the
License shall be used solely for the purpose described above, is granted
without any fee and may not be assigned or transferred.
(II) The Company and each of the Selling Shareholders jointly and severally
agree with each of the Underwriters:
(a) Prior to each Time of Delivery, to deposit, or cause to be
deposited on their behalf the Shares with the Depositary in accordance with
the provisions of the Deposit Agreement and otherwise to comply with the
Deposit Agreement so that ADRs evidencing ADSs will be executed (and, if
applicable, countersigned) and issued by the Depositary against receipt of
such Shares and delivered to the Underwriters at such Time of Delivery;
(b) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date of the Prospectus, such
Selling Shareholder will not offer, sell, contract to sell, pledge, grant
any option to purchase, make any short sale or otherwise dispose of, except
as provided hereunder and under this Agreement: (i) any Common Shares or
ADSs or any securities of the Company that are substantially similar to the
Common Shares or ADSs, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Common Shares or ADSs or any such substantially similar
securities; and (ii) any common shares of the Company's subsidiaries or
controlled affiliates or depositary shares or depositary receipts
representing such common shares, including but not limited to any
securities that are convertible into or exchangeable for or that represent
the right to receive such common shares or such depositary shares or
depositary receipts or any such substantially similar securities (in each
case other than pursuant to (1) employee stock option plans existing on the
date of this Agreement and which are described in the Prospectus, (2) upon
the conversion or exchange of convertible or exchangeable securities
outstanding as of the date of this Agreement and which are described in the
Prospectus or (3) the sale of any Common Shares subsequent to 30 days after
the date of the Prospectus), without your prior written consent, except for
ADSs and Common Shares represented thereby being sold hereunder;
(c) Until the distribution of ADSs has been completed, not to take,
directly or indirectly, any action which is designed to or which
constitutes or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
or facilitate the sale or resale of the Shares and the ADSs; and
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(d) To indemnify and hold the Underwriters harmless against any
documentary, stamp or similar issuance or transfer taxes, duties or fees
and any transaction levies, commissions or brokerage charges, including any
interest and penalties, payable in the ROC, which are or may be required to
be paid in connection with the creation, allotment, issuance, offer and
distribution of the ADSs to be sold by such Selling Shareholder and the
execution and delivery of this Agreement; provided, however, that such
Selling Shareholder shall not be responsible for any such taxes, duties,
fees, levies or charges that arise as a result of the distribution of the
ADSs by the Underwriters in a manner other than that as is customary in
such transactions or that relate to the ADSs to be sold by the other
Selling Shareholders; in addition, such Selling Shareholder agrees to
indemnify and hold the Underwriters harmless against any Taiwan Stock
Exchange transaction levy that may be required to be paid in connection
with the issuance of the Shares to be sold by such Selling Shareholder and
the listing of such Shares on the Taiwan Stock Exchange.
6. The Company covenants and agrees with the several Underwriters that it
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares and ADSs under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, the ADS Registration Statement, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers (collectively, the "Printing
Expenses"); (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the Blue Sky Memorandum, closing documents
(including compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the ADSs; (iii) all expenses in
connection with the qualification of the ADSs for offering and sale under state
securities laws as provided in Section 5(I)(b) hereof; (iv) all fees and
expenses in connection with the listing of the ADSs on the NYSE; and the filing
fees incident to and in connection with securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
ADSs; (v) all expenses and taxes arising as a result of the deposit by the
Selling Shareholders of the Shares with the Depositary and the issuance and
delivery of the ADRs evidencing ADSs in exchange therefor by the Depositary, of
the sale and delivery of the ADSs by the Selling Shareholders to or for the
account of the Underwriters, of the sale and delivery outside of the ROC of the
ADSs by the Underwriters to the initial purchasers thereof in the manner
contemplated under this Agreement, including, in any such case, any ROC
withholding, transfer or other similar taxes asserted against an Underwriter by
reason of the purchase and sale of an ADS pursuant to this Agreement (except
such income taxes as may be imposed by the government of the ROC or any
political subdivision or taxing authority thereof or therein on payments
hereunder to any Underwriter whose net income is subject to tax by the ROC or
withholding, if any, with respect to any such income tax); (vi) the fees and
expenses (including fees and disbursements of counsel), if any, of the
Depositary and any custodian appointed under the Deposit Agreement, other than
the fees and expenses to be paid by holders of ADRs (other than the
Underwriters, in connection with the initial purchase of ADSs; (vii) the fees
and expenses of the Authorized Agent (as defined in Section 14 hereof); (viii)
the cost of preparing ADRs; (ix) the cost and charges of any transfer agent or
registrar; (x) all of the roadshow expenses; and (xi) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. The Underwriters shall
reimburse the Company for the Printing Expenses and roadshow expenses up to
US$500,000. In addition, it is understood, that, except as provided in this
Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees and expenses of their counsel, stock
transfer taxes (other than any imposed by the ROC or any political subdivision
or taxing authority thereof or therein) on resale of any of the ADSs by them,
and any advertising expenses connected with any offers they may make.
-17-
7. The obligations of the Underwriters hereunder, as to the ADSs to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Shareholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Shareholders shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules and regulations under the Act and in accordance with Section
5(I)(a) hereof; if the Company has elected to rely upon Rule 462(b), the
Rule 462(b) Registration Statement shall have become effective by 10:00
P.M., Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Underwriters, shall
have furnished to you such written opinion or opinions, dated such Time of
Delivery, with respect to the matters as you may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Tsar & Tasi Law Firm, ROC counsel for the Underwriters, shall have
furnished to you such written opinion or opinions, dated such Time of
Delivery, with respect to the matters as you may reasonably request, and
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(d) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, U.S. counsel for the Company and the
Selling Shareholders, shall have furnished to you their written letter,
dated such Time of Delivery, in form and substance satisfactory to you,
stating that they are of the opinion to the effect set forth below:
(i) To the extent, if any, that the laws of the State of New York
may govern the execution and delivery thereof, (A) this Agreement and
the Deposit Agreement have been duly executed and delivered by the
Company and (B) this Agreement has been duly executed and delivered by
each of the Selling Shareholders;
(ii) Assuming that (A) the Deposit Agreement has been duly
authorized, executed and delivered by the Depositary and the Company
(except, with respect to the Company, to the extent, if any, that the
laws of the State of New York may govern the execution and delivery
thereof) and (B) each of the Depositary and the Company has full
power, authority and legal right to enter into and perform its
obligations thereunder, the Deposit Agreement constitutes a valid and
binding agreement of the Company, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of creditors' rights and
to general principles of equity and except as rights to indemnity and
contribution thereunder may be limited by applicable law;
-18-
(iii) Assuming that (A) DTC is a "protected purchaser" (as
defined in Section 8-303 of the Code) of the ADSs and a "securities
intermediary" (as defined in Section 8-102 of the Code) and (B) the
Underwriters have acquired pursuant to Section 8-501 of the Code and
the terms and provisions of this Agreement their "security
entitlement" (as defined in Section 8-102 of the Code) in the ADSs for
"value" (as defined in Section 1-201 of the Code) and without notice
of an "adverse claim" (as defined in Section 8-102 of the Code), no
action based on an adverse claim to such ADSs, whether framed in
conversion, replevin, constructive trust, equitable lien, or other
theory, may be asserted against such underwriter;
(iv) Upon issuance by the Depositary of the ADSs against the
deposit of the Shares in accordance with the Deposit Agreement, the
ADSs will be duly and validly issued and will entitle the holders
thereof to the rights specified in the Deposit Agreement assuming that
(A) the Deposit Agreement constitutes a valid and binding agreement of
the Depositary, (B) the Shares have been duly authorized and validly
issued and are fully paid and nonassessable and that any preemptive
rights with respect to the Shares have been validly waived or
exercised, (C) the Shares have been duly deposited with the Depositary
in accordance with the provisions of the Deposit Agreement and (D) the
actions specified in clauses (B) and (C) of this paragraph (iv) have
been taken in accordance with all applicable laws and regulations
(except, with respect to the Company, the applicable United States
Federal and New York State laws and regulations);
(v) Assuming that the actions referred to in clause (A) of this
paragraph (v) have been duly authorized by the Company, (A) the
Company has, under the laws of the State of New York relating to
personal jurisdiction, pursuant to Section 14 of this Agreement: (1)
validly and irrevocably submitted to the personal jurisdiction of any
state or Federal court located in the Borough of Manhattan, The City
of New York, New York (each a "New York Court") in any action arising
out of or based on this Agreement or the transactions contemplated
hereby, (2) to the extent permitted by applicable law, has validly and
irrevocably waived any objection to the venue of a proceeding in any
such court, and (3) validly and irrevocably appointed the Authorized
Agent (as defined herein) as its authorized agent for the purpose
described in Section 14 hereof; and (B) service of process effected on
such agent in the manner set forth in Section 14 hereof will be
effective to confer valid personal jurisdiction over the Company;
(vi) Assuming that the actions referred to in clause (A) of this
paragraph (vi) have been duly and validly authorized by each of the
Selling Shareholders, (A) such Selling Shareholder has, under the laws
of the State of New York relating to personal jurisdiction, pursuant
to Section 14 of this Agreement: (1) validly and irrevocably submitted
to the personal jurisdiction of any New York Court in any action
arising out of or based on this Agreement or the transactions
contemplated hereby, (2) to the extent permitted by applicable law,
validly and irrevocably waived any objection to the venue of a
proceeding in any such court, and (3) validly and irrevocably
appointed the Authorized Agent as its authorized agent for the purpose
described in Section 14 hereof; and (B) service of process effected on
such agent in the manner set forth in Section 14 hereof will be
effective to confer valid personal jurisdiction over such Selling
Shareholder;
-19-
(vii) Except as disclosed in the Registration Statement and the
Prospectus and except for the performance by (a) the Company of its
indemnification and contribution obligations under this Agreement and
the Deposit Agreement and (b) the Selling Shareholders of their
indemnification and contribution obligations under this Agreement, as
to which such counsel is not being asked to express an opinion, (A)
the deposit of the Shares by the Selling Shareholders with the
Depositary in accordance with the Deposit Agreement, (B) the sale of
the ADSs to the Underwriters in accordance with this Agreement, (C)
the performance by the Company of its obligations under this Agreement
and the Deposit Agreement and (D) the performance by each of the
Selling Shareholders of its obligations under this Agreement will not
contravene (x) any provision of United States Federal or New York
State law that in such counsel's experience is normally applicable to
general business corporations in relation to transactions of the type
contemplated in this Agreement and the Deposit Agreement, except for
the securities or Blue Sky laws of the State of New York, as to which
such counsel has not been asked to express an opinion, or (y) any
agreement or other instrument governed by New York law, binding on any
of the Selling Shareholders or the Company or any of the Significant
Subsidiaries listed on a schedule attached to such letter;
(viii) Except as disclosed in the Registration Statement and the
Prospectus and except for the performance by (x) the Company of its
indemnification and contribution obligations under this Agreement and
the Deposit Agreement, and (y) the Selling Shareholders of their
indemnification and contribution obligations under this Agreement as
to which such counsel is not being asked to express an opinion, no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required under United States
Federal or New York State law that in such counsel's experience is
normally applicable to general business corporations in relation to
transactions of the type contemplated in this Agreement and the
Deposit Agreement for (A) the deposit of the Shares with the
Depositary in accordance with the Deposit Agreement, (B) the sale of
the ADSs to the Underwriters in accordance with this Agreement, (C)
the performance by the Company of its obligations under this Agreement
and the Deposit Agreement and (D) the performance by each of the
Selling Shareholders of its obligations under this Agreement, except
such as may be required by the securities or Blue Sky laws of the
State of New York;
(ix) Such counsel has considered the statements relating to
United States Federal and New York State legal matters and documents
governed by New York State law included in the Prospectus under the
captions "Description of American Depositary Receipts", "Taxation -
United States Federal Income Taxation" and "Underwriting"; and in such
counsel's opinion, such statements, fairly summarize in all material
respects such matters and documents;
(x) The Company is not, and after giving effect to the offering
and sale of the ADSs and the application of the proceeds thereof as
described in the Prospectus will not be an "investment company" as
such term is defined in the Investment Company Act; and
(xi) Nothing has come to such counsel's attention that causes
such counsel to believe that (A) each document incorporated by
reference in the
-20-
Registration Statement and Prospectus (except for the financial
statements and financial schedules and other financial data included
therein, as to which such counsel has not been asked to express any
belief) did not when filed with the Commission comply as to form in
all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder, (B) the
Registration Statement and Prospectus (except for the financial
statements and financial schedules and other financial data included
therein, as to which such counsel has not been asked to express a
belief) do not comply as to form in all material respects with the
requirements of the Act and the applicable rules and regulations of
the Commission thereunder or that any documents that are required to
be filed as exhibits to the Registration Statement pursuant to such
rules and regulations have not been filed as required, or (C)(x) the
Registration Statement and the prospectus included therein (except for
the financial statements and financial schedules and other financial
data included therein, as to which such counsel need not express a
belief) at the time the Registration Statement became effective
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or (y) the Prospectus (except for
the financial statements and financial schedules and other financial
data included therein, as to which such counsel has not been asked to
express a belief) as of its date and as of the date of such letter
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
In rendering such opinion, such counsel shall state that the
Registration Statement has been declared effective under the Act and the
rules and regulations thereunder, the Prospectus either has been filed with
the Commission pursuant to Rule 424(b) under the Act or has been included
in the Registration Statement (as the case may be), and such counsel has no
knowledge of any stop order having been issued suspending the effectiveness
of the Registration Statement or of any proceedings for that purpose having
been instituted or threatened or pending by the Commission.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the laws of the State
of New York and the Federal laws of the United States;
(e) ▇▇▇ and Li, ROC counsel for the Company and the Selling
Shareholders, shall have furnished to you their written opinion dated such
Time of Delivery, in form and substance satisfactory to you, to the effect
that:
(i) The Company has been duly incorporated and is validly
existing as a corporation limited by shares under the laws of the ROC,
with corporate power and authority to own or lease its properties and
conduct its business as described in the Prospectus and to perform its
obligations under this Agreement and the Deposit Agreement;
(ii) Each of the Selling Shareholders has been duly incorporated
and is validly existing as a corporation limited by shares under the
laws of the ROC, with corporate power and authority to own or lease
its properties and conduct its business as described in the Prospectus
and to perform its obligations under this Agreement;
-21-
(iii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued and outstanding shares of
capital stock of the Company (including the Shares being delivered at
such Time of Delivery) have been duly and validly authorized and
issued and are fully paid and non-assessable; all of the issued and
outstanding Common Shares have been duly listed and admitted for
trading on the Taiwan Stock Exchange; the holders of outstanding
shares of capital stock of the Company are not entitled to preemptive
or other rights to acquire the Shares or the ADSs in connection with
the transactions contemplated hereby; the Shares to be deposited by
the Selling Shareholders may be freely deposited by the Selling
Shareholders with the Depositary against issuance of ADRs evidencing
ADSs; the ADSs and the Shares are freely transferable by the Selling
Shareholders to or for the account of the several Underwriters in the
manner contemplated herein and to the initial purchasers thereof; and
there are no restrictions on subsequent transfers of the ADSs or the
Shares except as described in the Prospectus under "Description of
Common Shares", "Common Shares Eligible for Future Sale", "Description
of American Depositary Receipts" and "Annex B - Foreign Investment and
Exchange Controls in the ROC"; and the Shares and ADSs conform to the
description of the Common Shares and the ADSs contained in the
Prospectus;
(iv) The Deposit Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, fraudulent transfer,
insolvency, reorganization and similar laws of general applicability
relating to or affecting creditors' rights;
(v) To the best of such counsel's knowledge after reasonable
inquiry and based on a certificate of the Company, the Company has
good and marketable title to all real property owned by it, in each
case free and clear of all liens, encumbrances and defects except such
as are described in the Prospectus or such as do not materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company; and any real
property and buildings held under lease by the Company are held by it
under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed
to be made of such property and buildings by the Company;
(vi) To the best of such counsel's knowledge after reasonable
inquiry and based on certificates of the Company, ASE Test, Inc. and
ASE (▇▇▇▇▇ ▇▇) Inc. (as to J&R Holding Limited and ASE Test Limited,
we relied on the opinions given by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ pursuant
to Section 7(h) and ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ pursuant to Section 7(g),
respectively), other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its Significant Subsidiaries is a party or of which any property of
the Company or any of its Significant Subsidiaries is the subject
which, if determined adversely to the Company or any of its
Significant Subsidiaries, would individually or in the aggregate have
a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of
the Company and its Significant Subsidiaries; and, to the best of such
counsel's knowledge and based on certificates of the Company, ASE
Test, Inc. and ASE (▇▇▇▇▇ ▇▇) Inc. (as to J&R Holding Limited
-22-
and ASE Test Limited, we relied on the opinions given by ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & Kempe pursuant to Section 7(h) and ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
pursuant to Section 7(g), respectively), no such proceedings are
threatened or contemplated by any Governmental Agency or threatened by
others;
(vii) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Selling Shareholders;
(viii) The sale of the Shares and ADSs being delivered at such
Time of Delivery, the deposit of the Shares being deposited by the
Selling Shareholders with the Depositary against issuance of the ADRs
evidencing the ADSs to be delivered at such Time of Delivery, the
compliance by the Company and the Selling Shareholders with all of the
provisions of this Agreement and the Deposit Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument listed as an exhibit to the Registration Statement, nor
will such action result in any violation of the provisions of the
Articles of Incorporation of the Company or any of the Selling
Shareholders or any statute, rule or regulation or, based on a
certificate of the Company, any order of any Governmental Agency of
the ROC;
(ix) Except as disclosed in the Prospectus, no Governmental
Authorization of or with any Governmental Agency is required in the
ROC for the sale of the ADSs by the Selling Shareholders, the deposit
of the Shares being deposited by the Selling Shareholders with the
Depositary against issuance of the ADRs evidencing the ADSs to be
delivered at such Time of Delivery or the consummation by the Company
or the Selling Shareholders of the transactions contemplated by this
Agreement and the Deposit Agreement, except for (A) the approval of
the CBC of foreign exchange settlements and payments contemplated by
the Deposit Agreement and (B) the filings and approvals, if any,
required under (1) the Overseas Offering Rules, (2) the Securities and
Exchange Law of the ROC and the Company Law of the ROC, and (3) the
rules and regulations of the Taiwan Stock Exchange, the SFC or the
CBC; and (C) such Governmental Authorizations which have been obtained
are in full force and effect as of such Time of Delivery;
(x) The statements in the Prospectus under "Risk Factors",
"Dividends and Dividend Policy", "Management's Discussion and Analysis
of Financial Condition and Results of Operations", "Business",
"Management", "Description of Common Shares", "Description of American
Depositary Receipts", "Underwriting", "Common Shares Eligible for
Future Sale", "Taxation - ROC Taxation", "Enforceability of Civil
Liabilities", "Annex A - The Securities Market of the ROC" and "Annex
B - Foreign Investment and Exchange Controls in the ROC", to the
extent such statements relate to matters of law or regulation or to
the provisions of documents therein described or purport to constitute
a summary of the terms of the Common Shares or the ADRs, as the case
may be, are true and accurate in all material respects, and nothing
has been omitted from such statements which would make the same
misleading in any material respect;
-23-
(xi) To the best of such counsel's knowledge after reasonable
inquiry and based on the certificates of the Company ASE Test, Inc.
and ASE (▇▇▇▇▇ ▇▇) Inc. (as to J&R Holding Limited and ASE Test
Limited, we relied on the opinions given by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
pursuant to Section 7(h) and ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ pursuant to Section
7(g), respectively), the Company and the Significant Subsidiaries own
and possess the Intellectual Property necessary to conduct their
businesses as presently conducted and as proposed to be conducted; and
neither the Company nor its Significant Subsidiaries has received any
notice or claim of infringement of or conflict with asserted rights of
others with respect to any Intellectual Property, which notice or
claim remains in dispute and which is reasonably likely to have a
material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of
the Company and its Significant Subsidiaries, taken as a whole;
(xii) Other than as set forth in the Prospectus, so long as this
Agreement and any cross receipt are executed outside the ROC, no stamp
or other issuance or transfer taxes or duties and no capital gains,
income, withholding or other taxes (except such income taxes as may be
imposed by the government of the ROC or any political subdivision or
taxing authority thereof or therein on payments hereunder to any
Underwriter whose net income is subject to tax by the ROC or
withholding, if any, with respect to any such income tax) are payable
by or on behalf of the Underwriters to the ROC or to any political
subdivision or taxing authority thereof or therein in connection with
(A) the deposit with the Depositary of Shares by the Selling
Shareholders against the issuance of ADRs evidencing the ADSs, (B) the
sale and delivery by the Selling Shareholders of the Shares and ADSs
to or for the respective accounts of the Underwriters as contemplated
in the Prospectus and pursuant to the terms of this Agreement, (C) the
sale and delivery outside the ROC by the Underwriters of the ADSs to
the initial purchasers thereof in the manner contemplated herein, or
(D) the execution and delivery of this Agreement and the Deposit
Agreement;
(xiii) The Company's agreement to the choice of law provisions
set forth in Section 17 hereof will be recognized by the courts of the
ROC, provided, that the relevant provisions of the laws of the State
of New York will not be applied to the extent such courts hold that
such provisions of the laws of the State of New York are contrary to
the public order or good morals of the ROC; the Company can ▇▇▇ and be
sued in its own name under the laws of the ROC; the irrevocable
submission of the Company to the exclusive jurisdiction of a New York
Court, the waiver by the Company of any objection to the venue of a
proceeding in a New York Court and the agreement of the Company that
this Agreement shall be governed by and construed in accordance with
the laws of the State of New York are legal, valid and binding;
service of process effected in the manner set forth in Section 14
hereof will be effective, insofar as the law of the ROC is concerned,
to confer valid jurisdiction over the Company; and judgment obtained
in a New York Court arising out of or in relation to the obligations
of the Company under this Agreement would be enforceable against the
Company in the courts of the ROC, provided, that the court of the ROC
in which the enforcement is sought is satisfied that (A) the court
rendering the judgment had jurisdiction over the subject matter
according to the laws of the ROC, (B) the judgment is not contrary to
the public order or good morals of the ROC, (C) if the judgment was
rendered by default by the court rendering the judgment, the Company
-24-
was served while within the jurisdiction of such court or process was
served on the Company with the judicial assistance of the ROC, and (D)
judgments of the courts of the ROC are recognized and enforceable in
the court rendering the judgment on a reciprocal basis;
(xiv) The agreement by each of the Selling Shareholders to the
choice of law provisions set forth in Section 17 hereof will be
recognized by the courts of the ROC, provided, that the relevant
provisions of the laws of the State of New York will not be applied to
the extent such courts hold that such provisions of the laws of the
State of New York are contrary to the public order or good morals of
the ROC; such Selling Shareholder can ▇▇▇ and be sued in its own name
under the laws of the ROC; the irrevocable submission of such Selling
Shareholder to the exclusive jurisdiction of a New York Court, the
waiver by the Selling Shareholder of any objection to the venue of a
proceeding in a New York Court and the agreement of such Selling
Shareholder that this Agreement shall be governed by and construed in
accordance with the laws of the State of New York are legal, valid and
binding; service of process effected in the manner set forth in
Section 14 hereof will be effective, insofar as the law of the ROC is
concerned, to confer valid jurisdiction over such Selling Shareholder;
and judgment obtained in a New York Court arising out of or in
relation to the obligations of such Selling Shareholder under this
Agreement would be enforceable against such Selling Shareholder in the
courts of the ROC, provided, that the court of the ROC in which the
enforcement is sought is satisfied that (A) the court rendering the
judgment had jurisdiction over the subject matter according to the
laws of the ROC, (B) the judgment is not contrary to the public order
or good morals of the ROC, (C) if the judgment was rendered by default
by the court rendering the judgment, such Selling Shareholder was
served while within the jurisdiction of such court or process was
served on such Selling Shareholder with the judicial assistance of the
ROC, and (D) judgments of the courts of the ROC are recognized and
enforceable in the court rendering the judgment on a reciprocal basis;
(xv) The indemnification and contribution provisions set forth in
Section 8 hereof do not contravene the laws of the ROC;
(xvi) Except as described in the Prospectus all dividends and
other distributions declared and payable on the shares of capital
stock of the Company may under the current laws and regulations of the
ROC to be paid in New Taiwan Dollars (including any such dividends or
distributions to be paid to the Depositary) may be converted into
foreign currency that may be freely transferred out of the ROC, and
all such dividends and other distributions will not be subject to
withholding or other taxes under the laws and regulations of the ROC
and are otherwise free and clear of any other tax, withholding or
deduction in the ROC and without the necessity of obtaining any
Governmental Authorization in the ROC;
(xvii) To the best of such counsel's knowledge after reasonable
inquiry and based on a certificate of the Company, the Company is not
in violation of its Articles of Incorporation or other constituent
documents and is not in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any
of its properties may be bound;
-25-
(xviii) Immediately prior to such Time of Delivery, (A) each of
the Selling Shareholders had good and valid title to the ADSs
representing such Shares to be sold at such Time of Delivery by such
Selling Shareholder under this Agreement, free and clear of all liens,
encumbrances, equities or claims, and full right, power and authority
to sell, assign, transfer and deliver the ADSs representing such
Shares to be sold by such Selling Shareholder hereunder, and (B) if
any the Selling Shareholders withdrew the Shares from the Depositary,
such Selling Shareholder would have good and valid title to such
Shares, free and clear of all liens, encumbrances, equities and
claims, and full right, power and authority to sell, assign, transfer
and deliver the Shares;
(xix) Good and valid title to the Shares and the ADSs
representing such Shares, free and clear of all liens, encumbrances,
equities or claims, has been transferred to each of the several
Underwriters who have purchased the ADSs representing such Shares in
good faith and without notice of any such lien, encumbrance, equity or
claim or any other adverse claim;
(xx) Based upon such counsel's participation in the preparation
of the Registration Statement and the Prospectus and review and
discussion of the contents thereof, and participation in conferences
with officers and other representatives and counsel of the Company and
representatives and counsel of the Underwriters in connection with the
preparation thereof, but without independent check or verification
except with respect to the matters to which such counsel's opinion
relates, such counsel have no reason to believe that, as of its
effective date, the Registration Statement or any further amendment
thereto made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules and other financial
data included therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its date,
the Prospectus or any further amendment or supplement thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules and other financial data included
therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as
of such Time of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules and other financial data included
therein, as to which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
(xxi) Each of this Agreement and the Deposit Agreement is in
proper form to be enforceable in the ROC in accordance with its terms;
to ensure the legality, validity, enforceability or admissibility into
evidence in the ROC of this Agreement and the Deposit Agreement, it is
not necessary that this Agreement or the Deposit Agreement be filed or
recorded with any court or other authority in the ROC or that any
stamp or similar tax in the ROC be paid on or in respect of this
Agreement, the Deposit Agreement, the ADRs or any other documents to
be furnished hereunder, it
-26-
being understood that in court proceedings in the ROC, a translation
into the Chinese language may be required.
In giving such opinion, such counsel may state that with respect to
all matters of United States federal and New York law they have relied upon
the opinions of United States counsel for the Company delivered pursuant to
paragraph (d) of this Section 7;
(f) ▇▇▇ and Li, ROC counsel for ASE Test, Inc. ("ASE Kaohsiung"), and
ASE (▇▇▇▇▇ ▇▇) Inc. ("ASE ▇▇▇▇▇ ▇▇"), shall have furnished to you their
written opinion dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) To the best of such counsel's knowledge after reasonable
inquiry and based on the certificates of each of ASE Kaohsiung and ASE
▇▇▇▇▇ ▇▇, each of ASE Kaohsiung and ASE ▇▇▇▇▇ ▇▇ has been duly
incorporated and is validly existing as a Company limited by shares
under the laws of the ROC; and except as disclosed in the Prospectus,
all of the issued shares of capital stock of each of ASE Kaohsiung and
ASE ▇▇▇▇▇ ▇▇ have been duly and validly authorized and issued, are
fully paid and non-assessable, and are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities and
claims;
(ii) To the best of such counsel's knowledge after reasonable
inquiry and based on the certificates of each of ASE Kaohsiung and ASE
▇▇▇▇▇ ▇▇, each of ASE Kaohsiung and ASE ▇▇▇▇▇ ▇▇ has good and
marketable title to all real property owned by each of them, in each
case free and clear of all liens, encumbrances and defects except such
as are described in the Prospectus or such as do not materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by each of them; and any real
property and buildings held under lease by each of ASE Kaohsiung and
ASE ▇▇▇▇▇ ▇▇ are held by each of them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property
and buildings by each of them;
(iii) To the best of such counsel's knowledge after reasonable
inquiry and based on the certificates of each of ASE Kaohsiung and ASE
▇▇▇▇▇ ▇▇, the issue and sale of the Shares and ADSs being delivered at
such Time of Delivery to be sold by the Selling Shareholders, the
deposit of the Shares being deposited by the Selling Shareholders with
the Depositary against issuance of the ADSs evidencing the ADRs to be
delivered at such Time of Delivery, the compliance by the Company with
all of the provisions of this Agreement and the Deposit Agreement, the
compliance by each of the Selling Shareholders with all of the
provisions of this Agreement, and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which any of ASE Kaohsiung and ASE ▇▇▇▇▇ ▇▇ is a party or by which
any of them is bound or to which any of the property or assets of any
of them is subject, nor will such action result in any violation of
the provisions of the Articles of Incorporation of any of them or any
statute or any order, rule or regulation known to such counsel of any
Governmental Agency having jurisdiction over any of them or any of
their properties; and
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(iv) To the best of such counsel's knowledge after reasonable
inquiry and based on the certificates of each of ASE Kaohsiung and ASE
▇▇▇▇▇ ▇▇, none of ASE Kaohsiung or ASE ▇▇▇▇▇ ▇▇ is in violation of its
Articles of Incorporation or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
(g) ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Republic of Singapore ("Singapore") counsel for
ASE Test Limited ("ASE Test"), shall have furnished to you their written
opinion dated such Time of Delivery, in form and substance satisfactory to
you, substantially to the effect that:
(i) ASE Test has been duly incorporated, is validly existing
under the laws of the Republic of Singapore, has the corporate power
and authority to own its property and to conduct its business as
described in the Prospectus;
(ii) As at April __, 2003, the ordinary shares of US$0.25 each in
the capital of ASE Test registered in the name of J&R Holding have
been duly authorized and validly issued, are fully paid and
non-assessable, and are not issued in violation of any preemptive or
similar rights under (A) the laws of the Republic of Singapore, (B)
the Memorandum and Articles of Association of ASE Test or other
constitutive document of ASE Test or any amendment thereto or (C) as
far as such counsel is aware, after due enquiry, any agreement or
instrument binding upon ASE Test and governed by Singapore law; for
the purposes of such opinion such counsel may assume that the term
"non-assessable" in relation to the shares means under Singapore law
that holders of such shares, having fully paid up all amounts due on
such shares as to nominal amount and premium thereon, are under no
further personal liability to contribute to the assets or liabilities
of ASE Test in their capacities purely as holders of such shares;
(iii) As at April __, 2003, the ordinary shares of US$0.25 each
in the capital of ASE Test registered in the name of ASE Holding
Limited have been duly authorized and validly issued, are fully paid
and non-assessable, and are not issued in violation of any preemptive
or similar rights under (A) the laws of the Republic of Singapore, (b)
the Memorandum and Articles of Association of ASE Test or any other
constitutive document of ASE Test or any other constitutive document
of ASE Test or any amendment thereto or (c) as far as such counsel is
aware, after due enquiry, any agreement or instrument binding upon ASE
Test and governed by Singapore law; for the purposes of such opinion
such counsel may assume that the term "non-assessable" in relation to
the shares means under Singapore law that holders of such shares,
having fully paid up all amounts due on such shares as to nominal
amount and premium thereon, are under no further personal liability to
contribute to the assets or liabilities of ASE Test in their
capacities purely as holders of such shares;
(iv) As of such Time of Delivery, (a) such counsel is not
representing ASE Test or any of its subsidiaries in any legal or
governmental proceedings, pending or threatened, to which ASE Test or
any subsidiary is a party or to which any of the properties of ASE
Test or any subsidiary is subject and (b) such counsel is not aware of
the existence of any such legal or governmental proceedings in the
Republic of Singapore;
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(v) The issue and sale of the Shares and ADSs being delivered at
such Time of Delivery to be sold by the Selling Shareholders, the
deposit of the Shares being deposited by the Selling Shareholders with
the Depositary against issuance of the ADRs evidencing the ADSs to be
delivered at such Time of Delivery and the performance by the Company
of its obligations under this Agreement and the Deposit Agreement, and
the performance by each of the Selling Shareholders of its obligations
under this Agreement, will not contravene (a) any provision of
applicable Singapore law or the Memorandum and Articles of Association
of ASE Test, or (b) as far as such counsel is aware, any judgment,
order or decree of any governmental body, agency or court of Singapore
having jurisdiction over ASE Test or any of its assets; and
(vi) No consents, authorizations, approvals, orders, certificates
or permits of and from, and no declarations and filings with, any
local and other governmental authorities in the Republic of Singapore
or any courts and other tribunals in the Republic of Singapore are
required for ASE Test to own, lease and use its properties and assets
and to conduct its business in the manner described in, and
contemplated by, the Prospectus;
(h) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Bermuda counsel for J&R Holding Limited
("J&R Holding"), shall have furnished to you their written opinion dated
such Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) J&R Holding has been duly incorporated and is validly
existing as a corporation formed under the laws of Bermuda; and all of
the outstanding shares of J&R Holding have been duly and validly
authorized and issued, are fully paid and non-assessable, and are
owned directly or indirectly by the Company; and a search of the
Register of Charges maintained by the Registrar of Companies in
Bermuda did not reveal any charges registered against the shares of
J&R Holding;
(ii) Based solely upon a search of the Supreme Court Causes Book
at the Registry of the Supreme Court by such counsel, there are no
legal or governmental proceedings in Bermuda pending to which J&R
Holding is subject and no such proceedings are threatened or
contemplated by any Bermuda Governmental Agency or threatened by
others;
(iii) The issue and sale of the Shares and ADSs being delivered
at such Time of Delivery to be sold by the Selling Shareholders, the
deposit of the Shares being deposited by the Selling Shareholders with
the Depositary against issuance of the ADSs evidencing the ADRs to be
delivered at such Time of Delivery, the compliance by the Company with
all of the provisions of this Agreement and the Deposit Agreement, the
compliance by each of the Selling Shareholders with all of the
provisions of this Agreement, and the consummation of the transactions
herein and therein contemplated does not and will not cause J&R
Holding to contravene or result in a breach of: (a) any applicable
law, rule or regulation of Bermuda, (b) any order, judgment,
injunction, decree, determination or award of any Bermuda court or any
Bermuda judicial, administrative or governmental authority or
organization presently in effect and applicable to J&R Holding, (c)
any provision of the Memorandum of Association or the Bye Laws of J&R
Holding or (d) to the best of such counsel's
-29-
knowledge after reasonable inquiry based solely on a review of the
documents listed in a schedule attached to such opinion, any agreement
or instrument binding on J&R Holding and governed by Bermuda law;
(iv) Other than such consents and approvals as have already been
granted by governmental authorities in Bermuda, no consents,
authorizations, approvals, orders, certificates or permits of and
from, and no declarations and filings with, any local and governmental
authorities in the Bermuda or any courts and other tribunals in the
Bermuda are required for J&R Holding to own, lease and use its
properties and assets and to conduct its business in the manner
described in, and contemplated by, the Prospectus; and
(v) J&R Holding has the requisite power and authority pursuant
to its Memorandum and Association and Bye-laws and under the laws of
Bermuda to own, lease and operate its properties and assets and to
conduct its business as described in the Prospectus;
(i) Counsel for the Depositary shall have furnished to you their
written opinion, dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and, assuming due authorization, execution
and delivery by the Company under the laws of the ROC, constitutes a
valid and legally binding obligation of the Depositary, enforceable in
accordance with its terms, except that (a) enforcement thereof may be
limited by (1) bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium
or similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, and (2) general principles of equity
(regardless of whether enforceability is considered in a proceeding in
law or in equity), and (b) such counsel express no opinion as to the
enforceability of the indemnity and contribution obligations of the
Depositary;
(ii) The ADRs issued under and in accordance with the provisions
of the Deposit Agreement to evidence ADSs will entitle the holders
thereof to the rights specified therein and in the Deposit Agreement,
assuming that (A) the Shares represented by the ADSs which are in turn
evidenced by ADRs have been duly authorized and validly issued and are
fully paid and nonassessable and that any preemptive rights with
respect to the Shares have been validly waived or exercised and (B)
such Shares have been duly deposited with Citibank, N.A., Taipei
Branch, as Custodian (as defined in the Deposit Agreement), in each
case under and in accordance with all applicable laws and regulations;
(iii) Upon issuance by the Depositary of ADRs evidencing ADSs
against the deposit of Shares in respect thereof in accordance with
the provisions of the Deposit Agreement, such ADRs will be duly and
validly issued and the person in whose name the ADRs are registered
will be entitled to the rights specified therein and in the Deposit
Agreement; and
(iv) The ADS Registration Statement and any amendments thereof or
supplements thereto, as of their respective effective dates, compiled
as to form in all
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material respects with the requirements of the Act and the rules and
regulations of the Commission thereunder;
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States;
(j) On the date of the printing of the Preliminary Prospectus at a
time prior to the actual printing of such Preliminary Prospectus, on the
date of the Prospectus of a time prior to the execution of this Agreement,
at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to
the date of this Agreement and also at each Time of Delivery, T. N. ▇▇▇▇▇ &
Co., an Associate Member Firm of Deloitte Touche Tohmatsu, shall have
furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect
set forth in Annex I hereto (the executed copies of the letters delivered
prior to the printing of the Preliminary Prospectus and prior to the
execution of this Agreement are attached as Annex I(a) hereto and a draft
of the form of letter to be delivered on the effective date of any
post-effective amendment to the Registration Statement and as of each Time
of Delivery is attached as Annex I(b) hereto);
(k) (i) Neither the Company nor any of the Significant Subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus that would have or would reasonably be
expected to have a Material Adverse Effect, and (ii) since the respective
dates as of which information is given in the Prospectus there shall not
have been any decrease in the capital stock or increase in short-term debt
or long-term debt of the Company or any of the Significant Subsidiaries or
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company or the
Significant Subsidiaries, otherwise than as set forth or contemplated in
the Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the ADSs being delivered at such Time of Delivery on the terms
and in the manner contemplated in the Prospectus;
(l) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the NYSE or the Taiwan Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's securities or
the ADSs on the NYSE or the Taiwan Stock Exchange; (iii) a general
moratorium on commercial banking activities in New York, London or the ROC,
declared by the relevant authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United
States, the United Kingdom or the ROC; (iv) a change or development
involving a prospective change (except as set forth in the Prospectus) in
the ROC taxation materially adversely affecting the Company, the Shares or
the ADSs or the transfer thereof or the imposition of exchange controls by
the United States or the ROC; (v) the outbreak or escalation of hostilities
involving the United States or the ROC or the declaration by the United
States or the ROC of a national emergency or war, if the effect of any such
event specified in this clause (v) in your reasonable judgment makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the ADSs being delivered at such Time of Delivery on
-31-
the terms and in the manner contemplated in the Prospectus or (vi) the
occurrence of any calamity or crisis or any material adverse change in the
existing financial, political or economic conditions or exchange rates or
controls in the United States, the ROC or elsewhere which, in your
reasonable judgment would materially and adversely affect the financial
markets or the market for the ADSs and other equity securities;
(m) The ADSs to be sold by the Selling Shareholders at such Time of
Delivery shall have been duly listed, subject to notice of issuance, on the
NYSE;
(n) The Depositary shall have furnished or caused to be furnished to
you at such Time of Delivery certificates satisfactory to you evidencing
the deposit with it of the Shares being so deposited against issuance of
ADRs evidencing the ADSs to be delivered by the Selling Shareholders at
such Time of Delivery, and the execution, countersignature (if applicable),
issuance and delivery of ADRs evidencing such ADSs pursuant to the Deposit
Agreement;
(o) Each party set forth in Annex III attached hereto shall have
entered into an agreement (each the "Lock-Up Agreement") whereby during the
period beginning from the date hereof and continuing to and including the
date 90 days after the date of the Prospectus, such party shall not offer,
sell, contract to sell, pledge, grant any option to purchase, make any
short sale or otherwise dispose of, except as provided hereunder, any (i)
Shares or ADSs or any securities of the Company that are substantially
similar to Shares or ADSs, including but not limited to any securities that
are convertible into or exchangeable for, or that represent the right to
receive, Shares or ADSs or any such substantially similar securities; (ii)
common shares of such party or depositary shares or depositary receipts
representing such common shares or any securities that are substantially
similar to such common shares or such depositary shares or depositary
receipts, including but not limited to any securities that are convertible
into or exchangeable for, or that represent the right to receive, such
common shares or such depositary shares or depositary receipts or any such
substantially similar securities; and (iii) common shares of such party's
subsidiaries or controlled affiliates or depositary shares or depositary
receipts representing such common shares or any securities that are
substantially similar to such common shares or such depositary shares or
depositary receipts, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, such common shares or such depositary shares or depositary
receipts or any such substantially similar securities, in each case whether
now owned or hereinafter acquired, owned directly by the such party
(including holding as a custodian) or with respect to which the such party
has beneficial ownership within the rules and regulations of the
Commission, without your prior written consent (a draft of such Lock-Up
Agreement is attached as Annex II hereto);
(p) The Company shall have complied with the provisions of Section
5(I)(c) hereof with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of this Agreement;
(q) (i) The Company shall have obtained all Governmental
Authorizations required for the sale of the ADSs, for the deposit of Shares
with the Depositary and for the execution and delivery by the Company of
this Agreement and the Deposit Agreement to be duly and validly authorized,
and (ii) the Selling Shareholders shall have obtained all Governmental
Authorizations required for the deposit of the Shares with the Depositary,
for the sale and delivery of the ADSs representing the Shares to be sold by
the Selling
-32-
Shareholders and for the execution and delivery by the Selling Shareholders
of this Agreement to be duly and validly authorized; and
(r) The Company shall have furnished or caused to be furnished to you
at such Time of Delivery certificates of officers of the Company and
officers of each of the Selling Shareholders satisfactory to you as to the
accuracy of the representations and warranties of the Company and each of
the Selling Shareholders herein, as the case may be, at and as of such Time
of Delivery, as to the performance by the Company and the Selling
Shareholders of all of their respective obligations hereunder to be
performed at or prior to such Time of Delivery, and as to such other
matters as you may reasonably request, and the Company shall have furnished
or caused to be furnished certificates as to the matters set forth in
subsections (a), (k) and (q) of this Section, and as to such other matters
as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the ADS Registration Statement or
the Prospectus, or any amendment 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 will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses
are incurred; provided, however, that the Company shall 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 an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the ADS Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through you expressly for use therein.
(b) Each of the Selling Shareholders, jointly and severally, will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement,
the ADS Registration Statement or the Prospectus, or any amendment 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
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however,
that such Selling Shareholder shall 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 an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration
Statement, the ADS Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
through you expressly for use therein.
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(c) Each Underwriter will indemnify and hold harmless the Company and
each of the Selling Shareholders against any losses, claims, damages or
liabilities to which the Company and each of the Selling Shareholders may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement,
the ADS Registration Statement or the Prospectus, or any amendment 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, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement, the ADS Registration
Statement or the Prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by
such Underwriter through you expressly for use therein; and will reimburse
the Company or each of the Selling Shareholders for any legal or other
expenses reasonably incurred by the Company and each of the Selling
Shareholders in connection with investigating or defending any such action
or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (which shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act,
by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company and
the Selling Shareholders on the one hand and the Underwriters on the other
from the offering of the ADSs. If, however, the allocation provided by the
immediately
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preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (d) above, then
each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company and
the Selling Shareholders on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Shareholders on the one hand (it
being understood that for purposes of this subsection (e) any benefit
received by the Selling Shareholders shall also be deemed to have been
received by the Company) and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering of
the ADSs purchased under this Agreement (before deducting expenses)
received by the Selling Shareholders bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
ADSs purchased under this Agreement, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company and the
Selling Shareholders on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company,
the Selling Shareholders and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this subsection (e) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (e). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (e) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the ADSs underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. 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. The
Underwriters' obligations in this subsection (e) to contribute are several
in proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company or the Selling Shareholders,
respectively, under this Section 8 shall be in addition to any liability
which the Company or the Selling Shareholders, respectively, may otherwise
have and shall extend, upon the same terms and conditions, to the
respective affiliates of each Underwriter and to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company or the Selling Shareholders, as the case may be, and to each
person, if any, who controls the Company or the Selling Shareholders, as
the case may be, within the meaning of the Act.
-35-
9. (a) If any Underwriter shall default in its obligation to purchase the
ADSs which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such ADSs on the terms contained herein. If within thirty-six
hours after such default by any Underwriter you do not arrange for the
purchase of such ADSs, then the Selling Shareholders shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such ADSs on such terms. In
the event that, within the respective prescribed periods, you notify the
Selling Shareholders that you have so arranged for the purchase of such
ADSs, or the Selling Shareholders notify you that they have so arranged for
the purchase of such ADSs, you or the Selling Shareholders shall have the
right to postpone such Time of Delivery for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby
be made necessary. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to
such ADSs.
(b) If, after giving effect to any arrangements for the purchase of
the ADSs of a defaulting Underwriter or Underwriters by you and the Selling
Shareholders as provided in subsection (a) above, the aggregate number of
such ADSs which remains unpurchased does not exceed one-eleventh of the
aggregate number of all of the ADSs to be purchased at such Time of
Delivery, then the Selling Shareholders shall have the right to require
each non-defaulting Underwriter to purchase the number of ADSs which such
Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro
rata share (based on the number of ADSs which such Underwriter agreed to
purchase hereunder) of the ADSs of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of
the ADSs of a defaulting Underwriter or Underwriters by you and the Selling
Shareholders as provided in subsection (a) above, the aggregate number of
such ADSs which remains unpurchased exceeds one-eleventh of the aggregate
number of all of the ADSs to be purchased at such Time of Delivery, or if
the Selling Shareholders shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
ADSs of a defaulting Underwriter or Underwriters, then this Agreement (or,
with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of ASE Capital to sell the Optional ADSs)
shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Shareholders, except
for the expenses as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Selling Shareholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any officer or director or controlling person of
the Company, or any Selling Shareholder, or any officer or
-36-
director or controlling person of any Selling Shareholder, and shall survive
delivery of and payment for the ADSs.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Shareholders shall be under any liability to
any Underwriter except as provided in Sections 6 and 8 hereof; but, if for any
other reason any ADSs are not delivered by or on behalf of the Selling
Shareholders as provided herein, the Company and the Selling Shareholders will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the ADSs not so delivered, but the Company and the Selling
Shareholders shall then be under no further liability to any Underwriter in
respect of the ADSs not so delivered, except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you as the representative.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representative at c/o Goldman ▇▇▇▇▇ (Asia)
L.L.C., 68th Floor, ▇▇▇▇▇▇ Kong Center, ▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇: Special Execution Group; and if to the Company or the Selling
Shareholders shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Company set forth in the Registration Statement,
Attention: Chief Financial Officer; provided, however, that any notice to an
Underwriter pursuant to Section 8 (d) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire or telex constituting such Questionnaire, which
address will be supplied to the Company or the Selling Shareholders by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company, the Selling Shareholders and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company,
the Selling Shareholders and each person who controls the Company, each of the
Selling Shareholders or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
ADSs from any Underwriter shall be deemed a successor or assign by reason merely
of such purchase.
14. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding against the Company or any of the Selling Shareholders
brought by any Underwriter or by any person who controls any Underwriter arising
out of or based upon this Agreement or the transactions contemplated hereby may
be instituted in any New York court, (ii) waives, to the extent permitted by
applicable law, any objection which it may now or hereafter have to the laying
of venue of any such proceeding and (iii) submits to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding. Each of the
Company and the Selling Shareholders has appointed C.T. Corporation System, New
York, New York, as its authorized agent (the "Authorized Agent") upon whom
process may be served in any such action arising out of or based on this
Agreement or the transactions contemplated hereby which may be instituted in any
New York Court by any Underwriter or by any person who controls any Underwriter,
expressly consents to the jurisdiction of any such court in respect of any such
action, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. Such appointment shall be irrevocable. Each
of the Company and the
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Selling Shareholders represents and warrants that the Authorized Agent has
agreed to act as such agent for service at process and agrees to take any and
all action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice of
such service to the Company and the Selling Shareholders, as the case may be,
shall be deemed, in every respect, effective service of process upon the Company
and the Selling Shareholders, as the case may be.
15. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company and the Selling Shareholders, as
the case may be, will, to the extent permitted by applicable law, indemnify each
Underwriter against any loss incurred by such Underwriter as a result of any
variation as between (i) the rate of exchange at which the United States dollar
amount is converted into the judgment currency for the purpose of such judgment
or order and (ii) the rate of exchange at which an Underwriter is able to
purchase United States dollars with the amount of the judgment currency actually
received by such Underwriter. The foregoing indemnity shall constitute a
separate and independent obligation of the Company and the Selling Shareholders
and shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "rate of exchange" shall include any premiums and
costs of exchange payable in connection with the purchase of or conversion into
United States dollars.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
18. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
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If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
the Selling Shareholders. It is understood that your acceptance of this letter
on behalf of each of the Underwriters is pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
Advanced Semiconductor Engineering, Inc.
By:
-------------------------------------
Name:
Title:
ASE Investment Inc.
By:
-------------------------------------
Name:
Title:
ASE Capital Inc.
By:
-------------------------------------
Name:
Title:
Accepted as of the date hereof
on behalf of each of the Underwriters
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
By:
--------------------------------------------------------
Name:
Title:
SCHEDULE I
NUMBER OF OPTIONAL
ADSs TO BE PURCHASED
TOTAL NUMBER OF FIRM IF MAXIMUM
UNDERWRITER ADSs BE PURCHASED OPTION EXERCISED
----------- -------------------- ---------------------
▇▇▇▇▇▇▇ Sachs International. ............................
-------------------- ---------------------
Total ..........................................
==================== =====================
SCHEDULE II
Total Number of Firm
Selling Shareholders ADSs to be sold
-------------------- --------------------------
ASE Investment Inc...................................................
ASE Capital Inc......................................................
--------------------------
Total ......................................................
==========================
SCHEDULE III
SIGNIFICANT SUBSIDIARIES
ASE (▇▇▇▇▇ ▇▇) Inc.
ASE Electronics (M) Sdn, Bhd.
ASE Test Limited
J&R Holding Limited
ANNEX I
FORM OF ANNEX I DESCRIPTION OF COMFORT LETTER
FOR REGISTRATION STATEMENT ON FORM F-3
Pursuant to Section 7(j) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Prospectus or the Registration
Statement comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the unaudited
consolidated interim financial statements, selected financial data, pro
forma financial information, financial forecasts and/or condensed financial
statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon,
copies of which have been separately furnished to the representative of the
Underwriters (the "Representative");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus and/or
included in the Company's current report on Form 6-K incorporated by
reference into the Prospectus as indicated in their reports thereon copies
of which have been separately furnished to the Representative; and on the
basis of specified procedures including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations, nothing came
to their attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all material
respects with the applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the five most recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 8 of the Company's Annual
Report on Form 20-F for the most recent fiscal year agrees with the
corresponding amounts (after restatements where applicable) in the audited
consolidated financial statements for such five fiscal years which were
included or incorporated by reference in the Company's Annual Reports on
Form 20-F for such fiscal years;
A-I-1
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 8 and 11 of Form 20-F and of
Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by
reference in an interim report on Form 6-K incorporated by reference
in the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act and
the related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus or included in an
interim report on Form 6-K incorporated by reference in the
Prospectus, for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in the
Company's Annual Report on Form 20-F for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived any unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 20-F for the most
recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
A-I-2
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest financial statements
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Representative,
or any increases in any items specified by the Representative, in each
case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in clause (E) there were any decreases
in consolidated net revenues or operating profit or the total or per
share amounts of consolidated net income or other items specified by
the Representative, or any increases in any items specified by the
Representative, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Representative, except in each case for decreases or
increases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representative, which are derived from the general accounting records of
the Company and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Representative or
in documents incorporated by reference in the Prospectus specified by the
Representative, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
A-I-3
ANNEX II
FORM OF LOCK-UP AGREEMENT
ADVANCED SEMICONDUCTOR ENGINEERING, INC.
LOCK-UP AGREEMENT
April __, 2003
▇▇▇▇▇▇▇ ▇▇▇▇▇ International,
As representative of the several Underwriters
named in Schedule I hereto,
Peterborough Court,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇.
Re: Advanced Semiconductor Engineering, Inc. -- Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that you, as representative (the
"Representative"), propose to enter into an underwriting agreement, dated as of
April __, 2003 (the "Underwriting Agreement") on behalf of the several
Underwriters named in Schedule I to such agreement (collectively, the
"Underwriters"), with Advanced Semiconductor Engineering, Inc. (the "Company"),
a company limited by shares formed under the laws of the Republic of China (the
"Company"), and ASE Investment Inc. and ASE Capital Inc., each a company limited
by shares formed under the laws of the Republic of China (collectively, the
"Selling Shareholders"), providing for a public offering of American depositary
shares ("ADSs") representing common shares of the Company, par value NT$10 per
share (the "Common Shares"), pursuant to a Registration Statement on Form F-3
(File No. 333-89428)and a Registration Statement on Form F-6 (File No.
333-12468) to be filed with the Securities and Exchange Commission (the "SEC").
In consideration of the agreement by the Underwriters to offer and sell the
ADSs, and of other good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, the undersigned agrees that, during the period
beginning from the date of the final Prospectus covering the public offering of
the ADSs and continuing to and including the date 90 days after the date of such
final Prospectus (the "Lock-up Period"), the undersigned will not offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or
otherwise dispose of any (i) Common Shares or ADSs or any securities of the
Company that are substantially similar to Common Shares or ADSs, including but
not limited to any securities that are convertible into or exchangeable for, or
that represent the right to receive, Common Shares or ADSs or any such
substantially similar securities; (ii) common shares of the undersigned or
depositary shares or depositary receipts representing such common shares or any
A-II-1
securities that are substantially similar to such common shares or such
depositary shares or depositary receipts, including but not limited to any
securities that are convertible into or exchangeable for, or that represent the
right to receive, such common shares or such depositary shares or depositary
receipts or any such substantially similar securities; and (iii) common shares
of the subsidiaries or controlled affiliates of the undersigned or depositary
shares or depositary receipts representing such common shares or any securities
that are substantially similar to such common shares or such depositary shares
or depositary receipts, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to receive,
such common shares or such depositary shares or depositary receipts or any such
substantially similar securities, in each case whether now owned or hereinafter
acquired, owned directly by the undersigned (including holding as a custodian)
or with respect to which the undersigned has beneficial ownership within the
rules and regulations of the U.S. Securities and Exchange Commission, without
your prior written consent.
The undersigned understands that the Company, the Selling shareholders and
the Underwriters are relying upon this Lock-Up Agreement in proceeding toward
consummation of the offering. The undersigned further understands that this
Lock-Up Agreement is irrevocable and shall be binding upon the undersigned's
heirs, legal representatives, successors, and assigns.
This Agreement shall terminate upon the expiration of the Lock-up Period or
in the event that there is no delivery of and payment for the ADSs pursuant to
the Underwriting Agreement, upon 3 days' prior written notice of such
non-delivery and non-payment given by the undersigned to you.
Very truly yours,
-------------------------------
Exact Name of Shareholder
-------------------------------
Authorized Signature
-------------------------------
Title
A-II-2
ANNEX III
SCHEDULE OF SHAREHOLDERS
ASE Enterprises
▇▇▇▇▇ C.S. ▇▇▇▇▇
▇▇▇▇▇▇▇ H.P. ▇▇▇▇▇
▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ Development & Construction Co., Ltd.
A-III-1
