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EXHIBIT 1.2
Chartered Semiconductor Manufacturing Ltd
70,000,000 Ordinary Shares*
directly or in the form of American Depositary Shares
(S$0.26 par value)
Each American Depositary Share representing
the right to receive ten Ordinary Shares
International Underwriting Agreement
London, England
May ___, 2000
Salomon Brothers International Limited
Credit Suisse First Boston (Singapore) Limited
Chase Securities Inc.
Overseas Union Bank Limited
SG Securities (Singapore) Pte. Ltd.
Xxxxxxx Xxxxxx & Company Pte Ltd
Wit SoundView Corporation
As International Representatives of the several International Underwriters
c/o Salomon Brothers International Limited
Victoria Plaza
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
Chartered Semiconductor Manufacturing Ltd, a corporation
organized under the laws of Singapore (the "Company"), proposes to sell to the
several international underwriters named in Schedule I hereto (the
"International Underwriters"), for whom you (the "International
Representatives") are acting as representatives, 31,200,000 ordinary shares
(the "Ordinary Shares"), S$0.26 par value per share, of the Company directly or
in the form of American Depositary Shares (the "ADSs") and each of the Selling
Shareholders named in Schedule II hereto proposes to sell to the several
International Underwriters the number of Ordinary Shares directly or in the form
of ADSs set forth opposite its name on Schedule II aggregating 38,800,000
Ordinary Shares (said Ordinary Shares to be issued and sold by the Company and
the Selling Shareholders being hereinafter called the "International
Underwritten Shares"). The Company and Singapore Technologies Semiconductors Pte
Ltd ("STS") also propose to grant to
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* Plus an option to purchase from Chartered Semiconductor Manufacturing
Ltd and Singapore Technologies Semiconductors Pte Ltd up to 4,680,000
and 5,820,000, respectively, additional Ordinary Shares directly or in
the form of American Depositary Shares to cover overallotments.
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the International Underwriters an option to purchase up to 4,680,000 and
5,820,000, respectively, additional Ordinary Shares directly or in the form of
ADSs to cover overallotments (the "International Option Shares" and together
with the International Underwritten Shares, the "International Shares" or the
"International Securities").
It is understood that the Company and the Selling Shareholders
are concurrently entering into the U.S. Underwriting Agreement, dated May
____, 2000 (together with this International Underwriting Agreement, the
"Underwriting Agreements"), providing for the sale by the Company and the
Selling Shareholders of an aggregate of 105,000,000 Ordinary Shares directly or
in the form of ADSs (said Ordinary Shares to be sold by the Company and the
Selling Shareholders pursuant to the U.S. Underwriting Agreement being
hereinafter called the "U.S. Underwritten Shares", and together with the
International Underwritten Shares, the "Underwritten Shares") and providing for
the grant to the U.S. Underwriters of an option to purchase from the Company and
STS up to 7,020,000 and 8,730,000, respectively, additional Ordinary Shares
directly or in the form of ADSs to cover overallotments (the "U.S. Option
Shares" and together with the U.S. Underwritten Shares, the "U.S. Shares" or the
"U.S. Securities", and the U.S. Securities together with the International
Securities, the "Securities").
In connection with the Global Offering (as defined below), the
Company has made a listing application to the Singapore Exchange Securities
Trading Limited (the "SGX-ST") and has lodged a Statement of Material Facts (the
"Statement") with the Singapore Registrar of Companies and Businesses ("RCB") to
invoke the exemption from the prospectus registration requirements under Section
106F of the Companies Act, Chapter 50 of Singapore.
You have also advised the Company and the Selling Shareholders
that the Underwriters may elect to cause the Company to deposit on their behalf
all or any portion of the Ordinary Shares to be purchased by them under the
Underwriting Agreements pursuant to the Deposit Agreement, dated as of November
4, 1999 (the "Deposit Agreement"), entered into among the Company, Citibank,
N.A., as depositary (the "Depositary") and all holders from time to time of the
ADSs. Upon any such deposit of Ordinary Shares, the Depositary will issue ADSs
representing the Ordinary Shares so deposited. The ADSs will be evidenced by
American Depositary Receipts (the "ADRs"). Each ADS will represent ten Ordinary
Shares and each ADR may represent any number of ADSs.
Prior to the Closing Date (as defined below), the Ordinary Shares
to be issued and sold by the Company will be delivered into escrow to be held by
Citibank Nominees Singapore Pte Ltd, as escrow agent (the "Escrow Agent"),
pursuant to an escrow agreement (the "Issuer Escrow Agreement") to be entered
into between the Company, the Escrow Agent and the Underwriters. Prior to the
Closing Date, the Ordinary Shares to be sold by each Selling Shareholder will be
delivered into escrow to be held by the Escrow Agent pursuant to an escrow
agreement (each, a "Selling Shareholder Escrow Agreement") to be entered into
between a Selling Shareholder, the custodian for such Selling Shareholder, the
Escrow Agent and the Underwriters.
Unless the context otherwise requires, the terms "Underwritten
Securities", "Option Securities", "U.S. Underwritten Securities", "U.S. Option
Securities", "U.S. Securities", "International Underwritten Securities",
"International Option Securities", "International
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Securities" and "Securities" shall be deemed to refer, respectively, to
Underwritten Shares, Option Shares, U.S. Underwritten Shares, U.S. Option
Shares, U.S. Shares, International Underwritten Shares, International Option
Shares, International Shares and Shares, as well as, in each case, to any ADSs
representing such securities.
It is further understood and agreed that the U.S. Underwriters
and the International Underwriters have entered into an Agreement Among U.S.
Underwriters and International Underwriters, dated the date hereof (the
"Agreement Among U.S. Underwriters and International Underwriters"), pursuant to
which, among other things, the International Underwriters may purchase from the
U.S. Underwriters a portion of the U.S. Securities to be sold pursuant to the
U.S. Underwriting Agreement and the U.S. Underwriters may purchase from the
International Underwriters a portion of the International Securities to be sold
pursuant to this International Underwriting Agreement.
The offering of the International Shares, directly or in the form
of ADSs, is referred to herein as the "International Offering"; and the offering
of the U.S. Shares, directly or in the form of ADSs, is referred to herein as
the "U.S. Offering". The U.S. Offering and International Offering are referred
to collectively as the "Global Offering".
To the extent there are no additional International Underwriters
listed on Schedule I other than you, the term International Representatives as
used in this International Underwriting Agreement shall mean you, as
International Underwriters, and the terms International Representatives and
International Underwriters shall mean either the singular or plural as the
context requires. In addition, to the extent that there is not more than one
Selling Shareholder named in Schedule II, the term Selling Shareholders, shall
mean the singular. The use of the neuter in this International Underwriting
Agreement shall include the feminine and masculine wherever appropriate.
Certain terms used in this International Underwriting Agreement
are defined in Section 21 hereof.
1. Representations and Warranties. (I) The Company and, except as
to paragraphs (i), (n) (other than clause (i) thereof), (q), (r), (s), (t)
(other than clause (i) thereof), (v), (w), (x), (y), (z), (aa), (bb), (cc),
(dd), (ff), (gg) and (hh) below, STS jointly and severally represent and warrant
to, and agree with, each International Underwriter as set forth below in this
Section 1.
(a) The Company has filed with the Commission a registration
statement (file number 333-34194) on Form F-1, including the related
U.S. Preliminary Prospectus, for the registration under the Act of the
offering and sale of the U.S. Securities. The Company may have filed one
or more amendments thereto, including the related U.S. Preliminary
Prospectus, which have previously been furnished to you. The Company
will next file with the Commission either (1) prior to the Effective
Date of the Registration Statement, a further amendment to the
Registration Statement (including the form of U.S. Prospectus) or (2)
after the Effective Date of the Registration Statement, the U.S.
Prospectus in accordance with Rules 430A and 424(b). In the case of
clause (2), the Company has included in the Registration Statement, as
amended at the Effective Date,
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all information (other than Rule 430A Information) required by the Act
and the rules thereunder to be included in the Registration Statement
and the U.S. Prospectus with respect to the Ordinary Shares and the
offering thereof directly or in the form of ADSs. As filed, such
amendment and form of final U.S. Prospectus, or such U.S. Prospectus, as
the case may be, shall contain all Rule 430A Information, together with
all other such required information, with respect to the underlying
Ordinary Shares and the offering thereof directly or in the form of
ADSs, and, except to the extent the U.S. Representatives shall agree to
a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest U.S. Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein.
It is understood that two forms of offering documents are to be
used in connection with the Global Offering and sale of the Securities:
one form of prospectus relating to the U.S. Securities, which are to be
offered and sold to United States and Canadian Persons, and one form of
offering memorandum relating to the International Securities, which are
to be offered and sold to persons other than United States and Canadian
Persons. The U.S. Prospectus and the International Offering Memorandum
are identical except for the outside front cover page and the outside
back cover page.
(b) On the Effective Date, the Registration Statement did or
will, and when the U.S. Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date and on any date on
which Option Securities are purchased, if such date is not the Closing
Date (a "settlement date"), each U.S. Prospectus (and any supplements
thereto) will comply in all material respects with the applicable
requirements of the Act and the rules thereunder; on the Effective Date
and at the Execution Time, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and, on the Effective Date,
each Prospectus, if not filed pursuant to Rule 424(b), did not and will
not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date and any settlement date, each Prospectus (together with any
supplement thereto) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company and STS
make no representations or warranties as to the information contained in
or omitted from the Registration Statement, or the Prospectuses (or any
supplement thereto), in reliance upon and in conformity with information
furnished herein or in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in
the Registration Statement or the Prospectuses (or any supplement
thereto). It is understood that the information that has been furnished
in writing by or on behalf of the several Underwriters for inclusion in
the Registration Statement, Preliminary Prospectuses or the Prospectuses
is limited to (A) the names of the Underwriters and their respective
participation in the sale of the Securities as set forth in the two
charts under the heading "Underwriting" in the Preliminary Prospectuses
or Prospectuses, (B) the statements set forth in the last paragraph on
the front cover page of the Preliminary Prospectuses or Prospectuses
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regarding delivery of the Securities (and the ADSs representing such
Securities) and (C) the statements set forth in the seventh, ninth,
thirteenth and fifteenth paragraphs under the heading "Underwriting" in
the Preliminary Prospectuses or Prospectuses.
(c) The Company has filed with the Commission registration
statements (file numbers 333-88623 and 333-34692) on Form F-6
(collectively, the "ADR Registration Statement") for the registration
under the Act of the offering and sale of the ADSs. The Company may have
filed one or more amendments thereto, each of which has previously been
furnished to you. Such ADR Registration Statement at the time of its
effectiveness did or will comply and on the Closing Date, will comply,
in all material respects with the applicable requirements of the Act and
the rules thereunder and at the time of its Effective Date and at the
Execution Time, did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(d) Each of the Company and the Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of
the jurisdiction in which it is incorporated with full corporate power
to own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectuses, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified or be in good
standing would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and the Subsidiaries,
taken as a whole.
(e) All the outstanding share capital of each Subsidiary has been
duly and validly authorized and issued and is fully paid and
non-assessable and, except for such shares of Chartered Silicon Partners
Pte Ltd ("CSP") as are owned by Agilent Technologies Europe BV or EDB
Investments Pte Ltd which shares do not exceed 49% of the outstanding
voting shares of CSP, all the outstanding shares of capital stock of the
Subsidiaries are owned by the Company directly free and clear of any
perfected security interests, liens or encumbrances.
(f) The Company's authorized, issued and outstanding equity
capitalization is as set forth in the Prospectuses. The outstanding
Ordinary Shares have been duly and validly authorized and issued and are
fully paid and non-assessable. The Ordinary Shares being sold under the
Underwriting Agreements have been duly and validly authorized, and, when
issued and delivered to the Depositary or its nominee in accordance with
the Deposit Agreement, to the International Underwriters in accordance
with this International Underwriting Agreement and to the U.S.
Underwriters in accordance with the U.S. Underwriting Agreement, will be
validly issued, fully paid and non-assessable. The certificates for the
Shares and the ADRs that are in certificated form are in valid form. The
holders of outstanding shares of capital stock of the Company are not
entitled to any preemptive or other rights to subscribe for the
Securities except for such rights that have been effectively waived.
Except as disclosed in the Prospectuses, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights
to convert any obligations into or exchange any securities for, shares
of capital stock of or
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ownership interests in the Company are outstanding. The Securities being
sold by the Company are freely transferable by the Company to or for the
account of the several Underwriters, their designees and the initial
purchasers thereof. Except as set forth in the Prospectuses, there are
no restrictions on subsequent transfers of the Securities under the laws
of Singapore and of the United States.
(g) The capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectuses. The
Articles of Association described in the Prospectuses under the heading
"Description of Ordinary Shares" are in full force and effect.
(h) Each of this International Underwriting Agreement, the U.S.
Underwriting Agreement the Deposit Agreement and the Issuer Escrow
Agreement has been duly authorized, executed and delivered by the
Company.
(i) There is no franchise, contract or other document of a
character required to be described in the Registration Statement, ADR
Registration Statement or Prospectuses, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
description of each such contract, franchise or document in the
Prospectuses is a fair description thereof in all material respects; and
each such franchise, contract or other document to which the Company is
a party, assuming due authorization, execution and delivery thereof by
all parties thereto, is enforceable against the Company in accordance
with its terms and is in full force and effect, and to the Company's
knowledge, is a legal, valid and binding obligation of the other parties
thereto. The statements in the Prospectuses under the heading
"Taxation", fairly summarize the matters therein described.
(j) Upon issuance by the Depositary of the ADRs evidencing the
ADSs against deposit in accordance with the provisions of the Deposit
Agreement of the underlying Ordinary Shares being sold by the Company
under the Underwriting Agreements, such ADSs will be duly and validly
issued and persons in whose names such ADSs are duly registered will be
entitled to the rights specified in the ADSs and in the Deposit
Agreement. Assuming that an Underwriter acquires its interest in such
ADSs without notice of an adverse claim (within the meaning of Section
8-105 of the UCC), such Underwriter that has purchased such ADSs
delivered to The Depository Trust Company by making payment therefor as
provided herein, and that has had such ADSs credited to the securities
account or accounts of such Underwriter maintained with The Depository
Trust Company or such other securities intermediary will have acquired a
security entitlement (within the meaning of Section 8-102(a)(17) of the
New York Uniform Commercial Code (the "UCC")) to such ADSs purchased by
such Underwriter, and no action based on any such adverse claim (within
the meaning of Section 8-102(a)(1) of the UCC) may be asserted against
such Underwriter with respect to such ADSs.
(k) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to the Singapore government or any political
subdivision or taxing authority thereof in
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connection with (A) the execution and delivery of the Underwriting
Agreements, (B) the issuance of the Ordinary Shares or the ADSs being
sold by the Company under the Underwriting Agreements in the manner
contemplated by the Underwriting Agreements, (C) the deposit with the
Depositary of the underlying Ordinary Shares being sold by the Company
under the Underwriting Agreements against issuance of ADRs evidencing
the ADSs, (D) the sale and delivery of the Ordinary Shares and the ADSs
by the Company to the Underwriters in accordance with the Underwriting
Agreements, or (E) except as disclosed in the Prospectuses under the
heading "Taxation--Singapore Taxation", the resale and delivery of such
Ordinary Shares and ADSs by the Underwriters in the manner contemplated
in the Prospectuses.
(l) Except as described in the Prospectuses, all dividends and
other distributions declared and payable on the Ordinary Shares may
under current Singapore law and regulations be paid to the Depositary
and to the holders of Securities, as the case may be, in Singapore
dollars and may be converted into foreign currency that may be
transferred out of Singapore in accordance with the Deposit Agreement.
(m) No consent, approval (including exchange control approval),
authorization, filing with or order of any court or governmental or
regulatory agency or body is required under Singapore or U.S. federal
law or the laws of any state or political subdivision thereof in
connection with the consummation by the Company of the transactions
contemplated in this U.S. Underwriting Agreement, the International
Underwriting Agreement, the Deposit Agreement and the Issuer Escrow
Agreement, except (A) such as have been obtained under the Act, the
Exchange Act, the Companies Act, Chapter 50 of Singapore, (B) such as
may be required under the blue sky or similar laws of any jurisdiction
in connection with the purchase and distribution of the Securities by
the Underwriters in the manner contemplated in the Underwriting
Agreements and the Prospectuses and (C) such as may be required pursuant
to the National Association of Securities Dealers, Inc. rules, The
Nasdaq Stock Market, Inc. rules, the letter from the SGX-ST dated
September 15, 1999 granting approval in principle for the listing and
quotation of the entire issued share capital of the Company on the Main
Board of the SGX-ST, or the letter from the SGX-ST dated March 29, 2000
regarding the listing of the new Shares, which such approvals have been
obtained.
(n) None of the issue and sale of the Securities, the
consummation of any other of the transactions contemplated in this U.S.
Underwriting Agreement, the International Underwriting Agreement, the
Deposit Agreement or the Issuer Escrow Agreement, or the fulfillment of
the terms hereof or thereof will conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Subsidiaries pursuant
to, (i) the Memorandum and Articles of Association of the Company or the
constituent documents of any of the Subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement, permit, license, franchise or other agreement,
obligation, condition, covenant or instrument to which the Company or
any of the Subsidiaries is a party or bound or to which its or their
property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of the
Subsidiaries of any court, regulatory body, administrative agency,
governmental
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body, arbitrator or other authority having jurisdiction over the Company
or any of the Subsidiaries or any of its or their properties, except,
with respect to clause (ii) or (iii) above, such as would not
individually or in the aggregate, have a material adverse effect on (A)
the performance of this U.S. Underwriting Agreement or the consummation
of any of the transactions contemplated herein or (B) the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole.
(o) The Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Prospectuses, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(p) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement or the
ADR Registration Statement except for such rights that have been
effectively waived.
(q) The consolidated historical financial statements and
schedules of the Company and the Subsidiaries (including the related
notes) included in the Registration Statement and the Prospectuses
present fairly in all material respects the financial condition, results
of operations, changes in financial position and cash flows as of the
dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been prepared in
conformity with United States generally accepted accounting principles
("U.S. GAAP") applied on a consistent basis throughout the periods
indicated (except as otherwise noted therein). The summary and selected
financial data included in the Registration Statement and the
Prospectuses fairly present in all material respects, on the basis
stated in the Registration Statement and the Prospectuses, the
information included therein.
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of the Subsidiaries or its or their property is pending
or, to the knowledge of the Company, threatened that (i) could
reasonably be expected to have a material adverse effect on the
performance of this International Underwriting Agreement or the
consummation of any of the transactions contemplated hereby or (ii)
could reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth or contemplated in the Prospectuses
(exclusive of any supplement thereto).
(s) Each of the Company and the Subsidiaries owns or leases all
such properties as are necessary to the conduct of its operations as
presently conducted. Any real property and buildings held under lease by
the Company or any of the Subsidiaries are held under valid, subsisting
and enforceable leases, with such exceptions as are not material and do
not interfere with the use made or proposed to be made of such property
and buildings by the Company or any of the Subsidiaries, in each case
except as described in or contemplated in the Prospectuses.
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(t) Neither the Company nor any of the Subsidiaries is in
violation or default of (i) any provision of its Memorandum and Articles
of Association or other constituent documents, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of the Subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
any of the Subsidiaries or any of its or their properties, except, with
respect to clause (ii) or (iii) above, such as would not individually or
in the aggregate, have a material adverse effect on (A) the performance
of this International Underwriting Agreement or the consummation of any
of the transactions contemplated herein or (B) the condition (financial
or otherwise), prospects, earnings, business or properties of the
Company and the Subsidiaries, taken as a whole.
(u) KPMG ("KPMG"), who have certified certain financial
statements of the Company and the Subsidiaries and delivered their
report with respect to the audited consolidated financial statements and
schedules included in the Registration Statement and the Prospectuses,
are independent public accountants with respect to the Company within
the meaning of the Act and the applicable published rules and
regulations thereunder.
(v) The Company has not taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities, provided, however, that this provision shall not apply to
any trading or stabilization activities conducted by the Underwriters.
(w) Each of the Company and the Subsidiaries possesses all
licenses, permits, certificates and other authorizations issued by the
appropriate Singapore, U.S., foreign, federal, state or local regulatory
authorities necessary to conduct its business as currently conducted,
except in any case in which the failure so to possess any such license,
permit, certificate or other authorization would not, individually or in
the aggregate, have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole. Neither the Company
nor any of the Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such license, permit,
certificate or authorization which, singly or in the aggregate, if the
subject of an unfavorable decision ruling or findings, would have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in the
Prospectuses (exclusive of any supplement thereto).
(x) Except as described in the Prospectuses, for the periods
described in the Prospectuses, the Company has no material capital
commitments.
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(y) No labor dispute with the employees of the Company or any of
the Subsidiaries exists or to the Company's best knowledge, is
threatened, and the Company is not aware of any existing labor
disturbance by the employees of any of its or any of the Subsidiaries',
that could have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(z) Each of the Company and the Subsidiaries is insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses
in which it is engaged. All policies of insurance insuring the Company
or any of the Subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect; each of
the Company and the Subsidiaries is in compliance with the terms of such
policies and instruments in all material respects; and there are no
claims by the Company or any of the Subsidiaries under any such policy
or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause. Neither the Company nor
any of the Subsidiaries has been refused any insurance coverage sought
or applied for. The Company has no reason to believe that either the
Company or any of the Subsidiaries will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto).
(aa) None of the Company's Subsidiaries is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on its capital stock, from repaying to the
Company any loans or advances to it from the Company or from
transferring any of its property or assets to the Company or the other
Subsidiary, except for certain restrictions as set forth in the Joint
Venture Agreement dated July 4, 1997 by and among the Company, Agilent
Technologies Europe BV and EDB Investments Pte Ltd (as amended) or as
described in or contemplated in the Prospectuses.
(bb) The Company and the Subsidiaries own, possess, license or
have other rights to use, on reasonable terms, all patents, patent
applications, trademarks, service marks, trade and service xxxx
registrations, trade names, licenses, copyrights, inventions, trade
secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct of
the Company's business as now conducted, and as described in the
Prospectuses, except where the failure to so own, possess, license or
have other rights to use would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from the ordinary course of business. Except as
set forth in the Prospectuses under the captions "Risk
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Factors" or "Business - Intellectual Property," to the Company's best
knowledge, (a) there are no rights of third parties to any such
Intellectual Property; (b) there is no material infringement by third
parties of any such Intellectual Property; (c) there is no pending or
threatened action, suit, proceeding or claim by others challenging the
Company's rights in or to any such Intellectual Property, and the
Company is unaware of any facts which would form a reasonable basis for
any such claim; (d) there is no pending or threatened action, suit,
proceeding or claim by others challenging the validity or scope of any
such Intellectual Property, and the Company is unaware of any facts
which would form a reasonable basis for any such claim; (e) there is no
pending or threatened action, suit, proceeding or claim by others that
the Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary right of others in any
Intellectual Property, and the Company is unaware of any other fact
which would form a reasonable basis for any such claim; and (f) there is
no prior art of which the Company is aware that may render any U.S.
patent held by the Company invalid or any U.S. patent application held
by the Company unpatentable which has not been disclosed to the U.S.
Patent and Trademark Office, in the case of any of (a) through (f)
above, which would have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole, whether or not
arising from the ordinary course of business.
(cc) Each of the Company and the Subsidiaries have implemented a
comprehensive, detailed program to analyze and address the risk that the
computer hardware and software used by them may be unable to operate
correctly with respect to calendar dates falling on or after January 1,
2000 in the same manner, and with the same functionality, as with
respect to calendar dates falling on or before December 31, 1999 (the
"Year 2000 Problem"), and the Company and each of the Subsidiaries
reasonably believes that such program has addressed the Year 2000
Problem with respect to the material operations of the Company and that
the Year 2000 Problem will not have a material adverse effect upon the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole.
(dd) The Company has filed all Singapore, U.S., foreign, federal,
state and local tax returns that are required to be filed or has
requested extensions thereof, except in any case in which the failure so
to file would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectuses (exclusive of any
supplement thereto) and has paid all taxes required to be paid by it and
any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good
faith or as would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectuses (exclusive of any
supplement thereto).
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(ee) No Underwriter or holder of Securities is or will be deemed
to be resident, domiciled, carrying on business or subject to taxation
in Singapore solely by reason of the execution, delivery, consummation
or enforcement of this International Underwriting Agreement.
(ff) Each of the Company and the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with U.S. generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(gg) The Company and the Subsidiaries are (i) in compliance with
any and all Singapore laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws")
applicable to conduct their respective businesses, (ii) have received
and are in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) have not received notice of any actual
or potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability would not, individually or in the
aggregate, have a material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
the Prospectuses (exclusive of any supplement thereto).
(hh) Each of the Company and the Subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Xxxxxxx 000
xx xxx Xxxxxx Xxxxxx Employee Retirement Income Security Act of 1974
("ERISA") and the regulations and published interpretations thereunder
with respect to each "plan" (as defined in Section 3(3) of ERISA and
such regulations and published interpretations) in which employees of
the Company and the Subsidiaries are eligible to participate (other than
any "multi-employer plan" within the meaning of Section 4001(a)(3) of
ERISA) and each such plan (other than any "multi-employer plan" within
the meaning of Section 4001(a)(3) of ERISA) is in compliance in all
material respects with the presently applicable provisions of ERISA and
the United States Internal Revenue Code of 1986, as amended, and such
regulations and published interpretations, except where such failure to
fulfill or such non-compliance would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole. The Company and the Subsidiaries
have not incurred any unpaid liability to the Pension Benefit Guaranty
Corporation (other than for the payment of premiums in the ordinary
course) or to any such plan under Title
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IV of ERISA, except such as would not, individually or in the aggregate,
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole.
(ii) The Subsidiaries are the only significant subsidiaries of
the Company as defined by Rule 1.02 of Regulation S-X.
Any certificate signed by any officer of the Company or any of
the Subsidiaries, in his or her capacity as an officer of the Company or
any of the Subsidiaries, and delivered to you or counsel for the
International Underwriters in connection with this International
Underwriting Agreement shall be deemed to be a representation and
warranty by the Company to each International Underwriter as to the
matters covered thereby.
(II) Each Selling Shareholder (other than STS with respect to
paragraphs (d) and (f) to the extent they relate to the Custody
Agreement), severally and not jointly, represents and warrants to, and
agrees with, each International Underwriter and the Company as follows:
(a) Such Selling Shareholder is the lawful owner of the Ordinary
Shares to be sold by such Selling Shareholder pursuant to this
Underwriting Agreement free and clear of all liens, encumbrances,
equities and claims whatsoever.
(b) In the case of an Underwriter entitled to receive Ordinary
Shares, the Selling Shareholder has executed (in blank or otherwise)
share transfer forms relating to such Ordinary Shares and, assuming that
such Underwriter purchases such Ordinary Shares without notice of any
adverse claim (within the meaning of Section 8-105 of the UCC), upon
sale and delivery of, and payment for, such Ordinary Shares, as provided
herein [and in the Selling Shareholder Escrow Agreement], each
Underwriter will own such Ordinary Shares free and clear of all liens,
encumbrances, equities and claims whatsoever.
(c) In the case of an Underwriter entitled to receive ADRs
evidencing ADSs, upon issuance by the Depositary of ADRs evidencing the
ADSs against deposit in accordance with the provisions of the Deposit
Agreement of the underlying Ordinary Shares being sold by such Selling
Shareholder under the Underwriting Agreements, such ADSs will be duly
and validly issued and persons in whose names such ADSs are duly
registered will be entitled to the rights specified in the ADSs and in
the Deposit Agreement. Assuming that an Underwriter acquires its
interest in such ADSs without notice of an adverse claim (within the
meaning of Section 8-105 of the UCC), such Underwriter that has
purchased such ADSs delivered to The Depository Trust Company by making
payment therefor as provided herein, and that has had such ADSs credited
to the securities account or accounts of such Underwriter maintained
with The Depository Trust Company or such other securities intermediary
will have acquired a security entitlement (within the meaning of Section
8-102(a)(17) of the UCC) to such ADSs purchased by such Underwriter, and
no action based on any such adverse claim (within
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the meaning of Section 8-102(a)(1) of the UCC) may be asserted against
such Underwriter with respect to such ADSs.
(d) Such Selling Shareholder's Ordinary Shares have been placed
in custody, for delivery pursuant to the terms of this Underwriting
Agreement, under a Custody Agreement and Power of Attorney duly
authorized (if applicable), executed and delivered by such Selling
Shareholder, in the form heretofore furnished to you (the "Custody
Agreement") with Xxxxxxx Xxxxx Barney Inc. as the Custodian (the
"Custodian"); the Ordinary Shares so held in custody for each Selling
Shareholder are subject to the interests under this Underwriting
Agreement of the Underwriters; the arrangements for custody and delivery
of such Ordinary Shares made by such Selling Shareholder under this
Underwriting Agreement and under the Custody Agreement and the Selling
Shareholder Escrow Agreement are not subject to termination by any acts
of such Selling Shareholder, or by operation of law, whether by the
death or incapacity of such Selling Shareholder or the occurrence of any
other event; and if any such death, incapacity or any other such event
shall occur before the delivery of the Securities under this
Underwriting Agreement, Ordinary Shares will be delivered by the
Custodian and Escrow Agent in accordance with the terms and conditions
of this Underwriting Agreement, the Custody Agreement and the Selling
Shareholder Escrow Agreement as if such death, incapacity or other event
had not occurred, regardless of whether or not the Custodian and Escrow
Agent shall have received notice of such death, incapacity or other
event.
(e) Each of this International Underwriting Agreement and the
U.S. Underwriting Agreement has been duly authorized, executed and
delivered by such Selling Shareholder. No consent, approval (including
exchange control approval), authorization, filing with or order of any
court or governmental agency or body is required under Singapore or U.S.
federal law or the laws of any state or political subdivision thereof
for the consummation by such Selling Shareholder of the transactions
contemplated in this Underwriting Agreement, except such as may have
been obtained under the Act, the Exchange Act, the Companies Act,
Chapter 50 of Singapore, such as may be required under the blue sky laws
of any jurisdiction and the securities laws of any jurisdiction outside
the United States in connection with the purchase and distribution of
the Securities by the Underwriters in the manner contemplated in the
Underwriting Agreements and the Prospectuses and such as may be required
pursuant to the National Association of Securities Dealers, Inc. rules
or The Nasdaq Stock Market, Inc. rules, which such approvals have been
obtained.
(f) None of the execution and delivery of this Underwriting
Agreement, the Custody Agreement and the Selling Shareholder Escrow
Agreement, the deposit of the Underwritten Securities being sold by such
Selling Shareholder with the Depositary in accordance with the terms of
the Deposit Agreement, the Custody Agreement and the Selling Shareholder
Escrow Agreement, the sale of the Securities being sold by the Selling
Shareholder, the consummation of any other of the transactions
contemplated in this Underwriting Agreement by such Selling Shareholder
or the fulfillment of the terms hereof by such Selling Shareholder will
conflict with, result in a breach or violation of, or constitute a
default under (i) the charter or by-laws of such Selling Shareholder,
(ii) the terms of any indenture or other agreement or instrument to
which such Selling
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Shareholder or any of its subsidiaries is a party or bound, or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable to
such Selling Shareholder or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over such Selling Shareholder or any of its
subsidiaries except, with respect to clause (ii) or (iii) above, such as
would not individually or in the aggregate, have a material adverse
effect on the performance of this Underwriting Agreement or the
consummation of any of the transactions contemplated herein.
(g) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to the Singapore government or any political
subdivision or taxing authority thereof (in the case of STS) or the
government in which the Selling Shareholder is domiciled or any
political subdivision or taxing authority thereof (in the case of other
Selling Shareholders) in connection with (A) the issuance of the ADSs
being sold by such Selling Shareholder under Underwriting Agreements in
the manner contemplated by this Underwriting Agreement, (B) the deposit
with the Depositary of the Underwritten Securities being sold by such
Selling Shareholder under the Underwriting Agreements against issuance
of ADRs evidencing the ADSs, (C) the sale and delivery of the Ordinary
Shares and the ADSs being sold by the Selling Shareholder in accordance
with the Underwriting Agreements, or (D) the resale and delivery by the
Underwriters of the Ordinary Shares or the ADSs being sold by such
Selling Shareholder to the Underwriters in the manner contemplated in
the Prospectuses.
(h) Such Selling Shareholder has not taken, directly or
indirectly, any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute under
the Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Securities, provided, however, that this provision shall not apply
to any trading or stabilization activities conducted by the
Underwriters.
(i) The sale of the Securities by such Selling Shareholder
pursuant hereto is not prompted by any information concerning the
Company or any of its subsidiaries which is not set forth in the
Prospectuses or any supplement thereto.
(j) In respect of any statements in or omissions from the
Registration Statement and the ADR Registration Statement or the
Prospectuses or any supplements thereto made in reliance upon and in
conformity with information furnished in writing to the Company by such
Selling Shareholder specifically for use in connection with the
preparation thereof, such Selling Shareholder hereby makes the same
representations and warranties to each Underwriter and the Company as
the Company makes to such Underwriter under paragraph (I)(b) of this
Section. The Company and each Underwriter acknowledge that the
information set forth under the heading "Principal and Selling
Shareholders" constitutes the only information so furnished.
Any certificate signed by any officer of any Selling Shareholder
and delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the
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Securities shall be deemed a representation and warranty by such Selling
Shareholder, as to matters covered thereby, to each International
Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this International
Underwriting Agreement, the Company and each Selling Shareholder agrees,
severally and not jointly, to sell to each International Underwriter,
and each International Underwriter agrees, severally and not jointly, to
purchase from the Company and the Selling Shareholders, at a purchase
price of US$________ per ADS and S$________ per Ordinary Share, the
amount of International Underwritten Shares set forth opposite such
International Underwriter's name in Schedule I to this International
Underwriting Agreement.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this International
Underwriting Agreement, the Company and STS hereby grant an option to
the several International Underwriters to purchase, severally and not
jointly, up to 4,680,000 and 5,820,000, respectively, International
Option Securities at the same purchase price per ADS and per Ordinary
Share as the International Underwriters shall pay for the International
Underwritten Securities. Said option may be exercised to cover
overallotments in the sale of the International Underwritten Securities
by the International Underwriters. Said option may be exercised
proportionally from the Company and STS in whole or in part at any time
(but not more than once) on or before the 30th day after the date of the
Prospectuses upon written or telegraphic notice by the International
Representatives to the Company and STS setting forth the number of
shares of the International Option Securities as to which the several
International Underwriters are exercising the option and the settlement
date. The number of International Option Securities to be purchased by
each International Underwriter shall be the same percentage of the total
number of shares of the International Option Securities to be purchased
by the several International Underwriters as such International
Underwriter is purchasing of the International Underwritten Securities,
subject to such adjustments as you in your absolute discretion shall
make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
International Underwritten Securities and the International Option Securities
(if the option provided for in Section 2(b) hereof shall have been exercised on
or before the third Business Day) shall be made at 9:00 AM, New York City time,
on May __, 2000 or such later date not later than five Business Days after the
foregoing date as the International Representatives shall designate, which date
and time may be postponed by agreement among the International Representatives,
the Selling Shareholders and the Company or as provided in Section 9 hereof
(such date and time of delivery and payment for the International Securities
being herein called in this International Underwriting Agreement, the "Closing
Date"). Delivery of the International Securities shall be made to the
International Representatives for the respective accounts of the several
International Underwriters, or if the International Underwriters so elect, to
the Depositary or its nominee pursuant to the Deposit Agreement, in either case,
against payment by the several International Underwriters through the
International Representatives of the respective aggregate purchase
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prices of the International Securities being sold by the Company and the Selling
Shareholders to or upon the order of the Company and the Selling Shareholders by
wire transfer payable in same day funds to the accounts specified by the Company
and the Selling Shareholders. Delivery of the ADRs representing International
Underwritten Securities and the International Option Securities shall be made
through the facilities of The Depository Trust Company unless the International
Representatives shall otherwise instruct at least one Business Day in advance of
the Closing Date. ADRs representing the International Securities and any
International Shares not delivered to the Depositary or its nominee pursuant to
the Deposit Agreement shall be registered in such names and in such
denominations as Xxxxxxx Xxxxx Xxxxxx Inc. ("Xxxxxxx Xxxxx Barney") may request
not less than two Business Days in advance of the Closing Date.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the U.S. Underwriting Agreement and
that the settlement date for any International Option Securities occurring after
the Closing Date, shall occur simultaneously with the settlement date for any
U.S. Option Securities occurring after the Closing Date under the U.S.
Underwriting Agreement.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company and STS will
deliver (at their expense) to the U.S. Representatives, c/o Xxxxxxx Xxxxx Xxxxxx
Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the date specified by
the International Representatives (which shall be within three Business Days
after exercise of said option), ADRs representing the International Option
Securities and any International Option Shares not delivered to the Depositary
or its nominee pursuant to the Deposit Agreement in such names and denominations
as the International Representatives shall have requested against payment by the
several International Underwriters through the International Representatives of
the purchase price thereof to or upon the order of the Company and STS
respectively, by wire transfer of U.S. dollars and payable in same day funds to
the accounts specified by the Company and STS, respectively. If settlement for
the International Option Securities occurs after the Closing Date, the Company
and STS will deliver to the International Representatives on the settlement date
for the International Option Securities, and the obligation of the International
Underwriters to purchase the International Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
International Underwriters propose to offer the International Securities for
sale to the public as set forth in the Prospectuses.
5. Agreements. (I) The Company agrees with the several
International Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement and the ADR Registration Statement, if not
effective at the Execution Time, and any amendment thereof, to become
effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement or
the ADR Registration Statement or supplement to the U.S. Prospectus or
any Rule 462(b)
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Registration Statement unless the Company has furnished you a copy for
your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, if the Registration Statement or the ADR
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the U.S. Prospectus is otherwise required under Rule
424(b), the Company will cause the U.S. Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to
the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the International
Representatives of such timely filing. The Company will promptly advise
the International Representatives (1) when the Registration Statement
and the ADR Registration Statement, if not effective at the Execution
Time, shall have become effective, (2) when the U.S. Prospectus, and any
supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement or ADR Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement or the ADR
Registration Statement shall have been filed or become effective, (4) of
any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement or ADR
Registration Statement, or for any supplement to the U.S. Prospectus or
for any additional information, (5) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the ADR Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result
of which the U.S. Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or the ADR Registration
Statement or supplement the U.S. Prospectus to comply with the Act or
the rules thereunder, the Company promptly will (1) notify the
International Representatives of any such event; (2) prepare and file
with the Commission, subject to the second sentence of paragraph (i)(a)
of this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance; and (3) supply any
supplemental U.S. Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will timely file such
reports pursuant to the Exchange Act as are necessary in order to make
generally available to its security holders and to the International
Representatives an earnings statement or statements of the Company and
the Subsidiaries which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
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(d) The Company will furnish to the International Representatives
and counsel for the International Underwriters, without charge, signed
copies of the Registration Statement and the ADR Registration Statement
(including exhibits thereto) and to each other International Underwriter
a copy of the Registration Statement and the ADR Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by
an International Underwriter or dealer may be required by the Act, as
many copies of each International Preliminary Offering Memorandum and
International Offering Memorandum and any supplement thereto as the
International Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
International Representatives may designate and will maintain such
qualifications in effect so long as required for the distribution of the
International Securities, provided, however, that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where
it is not now so qualified or to take any action that would subject it
to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not
now so subject.
(f) Except pursuant to the Underwriting Agreements, the Company
will not, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx
Inc., offer, sell, contract to sell, pledge, or otherwise dispose of,
(or enter into any transaction which is designed to, or might reasonably
be expected to, result in the disposition (whether by actual disposition
or effective economic disposition due to cash settlement or otherwise)
by the Company) directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any Ordinary Shares or ADSs
or any securities convertible into, or exercisable, or exchangeable for,
Ordinary Shares or ADSs; or publicly announce an intention to effect any
such transaction, for a period of 90 days after the date of the
Underwriting Agreements, provided, however, that the Company may issue
and sell Ordinary Shares pursuant to any employee stock option plan or
stock ownership plan, and may file a Form S-8 with respect thereto.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Ordinary Shares or the
ADSs.
(h) Each of the Company and the Selling Shareholders (in
proportion to the number of Securities being offered by each of them,
including any Option Securities which the Underwriters shall have
elected to purchase), agrees, severally and not jointly, to pay the
costs and expenses relating to the following matters: (i) the fees and
expenses of its counsel (including local counsel) and accountants in
connection with the issue of the Securities, (ii) the preparation,
printing or reproduction and filing with the Commission of the
Registration Statement and the ADR Registration Statement
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(including financial statements and exhibits thereto), each Preliminary
Prospectus, each Prospectus, and each amendment or supplement to any of
them and mailing and delivering (including postage, air freight charges
and charges for counting and packing) copies thereof to the initial
purchasers and dealers; (iii) the deposit of the underlying Ordinary
Shares under the Deposit Agreement, the issuance thereunder of ADSs
representing such deposited Ordinary Shares, the issuance of ADRs
evidencing such ADSs and the fees of the Depositary; (iv) all expenses
relating to the road show for the offering of the Securities, including
the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Securities; (v) the preparation, printing,
authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with the
original issuance and sale of the Securities; (vi) the registration of
the Securities under the Exchange Act and the listing of the Ordinary
Shares and the ADSs on the SGX-ST and The Nasdaq National Market, Inc.,
respectively (such SGX-ST listing fees to be paid only by the Company,
however); (vii) any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD") (including filing
fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (viii) the fees and expenses of
the Authorized Agent (as defined in Section 15 hereof); (ix) the cost
and charges of any transfer agent or registrar; and (x) all other costs
and expenses incident to the performance by each of the Company and the
Selling Shareholders of its obligations under the Underwriting
Agreements.
(i) Each International Underwriter agrees that (i) it is not
purchasing any of the International Securities for the account of any
United States or Canadian Person, (ii) it has not offered or sold, and
will not offer or sell, directly or indirectly, any of the International
Securities or distribute any International Offering Memorandum to any
person in the United States or Canada, or to any United States or
Canadian Person, and (iii) any dealer to whom it may sell any of the
International Securities will represent that it is not purchasing for
the account of any United States or Canadian Person and agree that it
will not offer or resell, directly or indirectly, any of the
International Securities in the United States or Canada, or to any
United States or Canadian Person or to any other dealer who does not so
represent and agree; provided, however, that the foregoing shall not
restrict (A) purchases and sales among the International Underwriters
and the U.S. Underwriters pursuant to the Agreement Among U.S.
Underwriters and International Underwriters, (B) stabilization
transactions contemplated under the Agreement Among U.S. Underwriters
and International Underwriters, conducted through Xxxxxxx Xxxxx Barney
(or through the U.S. Representatives and International Representatives)
as part of the distribution of the Securities, and (C) sales to or
through (or distributions of International Offering Memoranda or
International Preliminary Offering Memoranda to) persons not United
States or Canadian Persons who are investment advisors, or who otherwise
exercise investment discretion, and who are purchasing for the account
of any United States or Canadian Person.
(II) The agreements of the International Underwriters set forth
in paragraph (I)(i) of this Section 5 shall terminate upon the earlier of the
following events:
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(a) a mutual agreement of the U.S. Representatives and the
International Representatives to terminate the selling restrictions set
forth in paragraph (I)(i) of this Section 5, paragraph (I)(i) of Section
5 of the U.S. Underwriting Agreement and Section 2(f) of the Agreement
Among U.S. Underwriters and International Underwriters; or
(b) the expiration of a period of 30 days after the Closing Date,
unless (i) the International Representatives shall have given notice to
the Company and the U.S. Representatives that the distribution of the
International Securities by the International Underwriters has not yet
been completed, or (ii) the U.S. Representatives shall have given notice
to the Company and the International Representatives that the
distribution of the U.S. Securities by the U.S. Underwriters has not yet
been completed. If such notice by the International Representatives or
the U.S. Representatives is given, the agreements set forth in such
paragraph (I)(i) shall survive until the earlier of (1) the event
referred to in clause (a) of this subsection (II) or (2) the expiration
of an additional period of 30 days from the date of any such notice.
(III) Each International Underwriter severally represents and
agrees that:
(a) it has not offered or sold and, prior to the expiry of six
months from the closing of the offering of the International Securities,
will not offer or sell by means of any document any International
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (whether as principal or agent) for the purpose
of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities
Regulations 1995;
(b) it has complied and will comply with all applicable
provisions of the Financial Services Xxx 0000 with respect to anything
done by you in relation to the International Securities in, from or
otherwise involving the United Kingdom;
(c) it has only issued or passed on, and will only issue or pass
on, in the United Kingdom any document received by it in connection with
the issue of the International Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Xxx 0000
(Investment Advertisements) (Exemptions) Order 1996 (as amended), or a
person to whom such document may otherwise lawfully be issued or passed
on;
(d) it has not offered or sold and will not offer or sell,
directly or indirectly, in Japan or to or for the account of any
resident of Japan any International Securities, except (A) under an
exemption from the registration requirements of the Securities and
Exchange Law of Japan and (B) in compliance with any other applicable
requirements of Japanese law;
(e) it will send to any dealer who purchases from it any
International Securities a notice stating in substance that, by
purchasing such International Securities, the dealer represents and
agrees that it has not offered or sold, and will not offer or sell,
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any of the Shares or ADSs, directly or indirectly, in Japan or to or for
the account of any resident thereof except pursuant to an exemption from
the registration requirements of the Securities and Exchange Law of
Japan, and that the dealer will send to any other dealer to whom it
sells any International Securities a notice containing substantially the
same statement as is contained in this sentence;
(f) it has not offered or sold and will not offer or sell any
International Securities in Hong Kong by means of any document, other
than to persons whose ordinary business it is to buy or sell shares or
debentures, whether as principal or agent, except in circumstances which
do not constitute an offer to the public within the meaning of the
Companies Ordinance (Chapter 32) of Hong Kong;
(g) it has not issued and will not issue any invitation or
advertisement relating to the International Securities in Hong Kong,
except if permitted to do so by the securities law of Hong Kong or to be
disposed of in Hong Kong only to persons whose business involves the
acquisition, disposal or holding of shares whether as principal or
agent; and
(h) it has complied and will comply with all applicable laws and
regulations and has made or obtained or will make or obtain all
necessary filings, consents or approvals in each jurisdiction in which
it purchases, offers, sells or delivers International Securities
(including, without limitation, any applicable requirements relating to
the delivery of the Preliminary Prospectuses or Prospectuses), in each
case at its own expense; and
(i) it has not and will not offer or sell any International
Securities or distribute any document or other material relating to the
International Securities, either directly or indirectly, to the public
or any member of the public in Singapore other than (A) to an
institutional investor or other person specified in Section 106C of the
Companies Act, Chapter 50 of Singapore, (B) to a sophisticated investor
as specified in, and in accordance with the conditions, specified in
Section 106D of the Companies Act, Chapter 50 of Singapore or (C)
otherwise pursuant to, and in accordance with the conditions of, any
other provision of the Companies Act, Chapter 50 of Singapore (any of
the foregoing a "Singapore Institutional Investor"); it being understood
that this clause (i) shall not apply to Overseas Union Bank Limited and
Xxxxxxx Xxxxxx & Company Pte Ltd (except that Overseas Union Bank
Limited and Xxxxxxx Ballas & Company Pte Ltd shall not distribute the
International Offering Memorandum, in a preliminary or final form, to
any person in Singapore other than a Singapore Institutional Investor).
(IV) Each Selling Shareholder agrees with the several
Underwriters and the Company that:
(a) Except pursuant to the Underwriting Agreements, such Selling
Shareholder will not, without the prior written consent of Xxxxxxx Xxxxx
Barney Inc., offer, sell, contract to sell, pledge or otherwise dispose
of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Selling Shareholder) directly or indirectly, or file
(or participate in the filing of) a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act with respect to, any Ordinary
Shares or ADSs or any securities convertible into or exercisable or
exchangeable for Ordinary Shares or ADSs, or publicly announce an
intention to effect any such
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transaction, for a period of 90 days after the date of this
International Underwriting Agreement, other than Ordinary Shares or ADSs
disposed of as bona fide gifts approved by Xxxxxxx Xxxxx Xxxxxx Inc.
(b) Such Selling Shareholder will not take any action designed to
or which has constituted or which might reasonably be expected to cause
or result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Ordinary Shares or the ADSs.
(c) Such Selling Shareholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as
delivery of a prospectus relating to the Securities by an underwriter or
dealer may be required under the Act, of (i) any material change in the
Company's condition (financial or otherwise), prospects, earnings,
business or properties which comes to the attention of such Selling
Shareholder, (ii) any change in information in the Registration
Statement, the ADR Registration Statement or the Prospectuses relating
to such Selling Shareholder or (iii) any new material information
relating to the Company or relating to any matter stated in the
Prospectuses which comes to the attention of such Selling Shareholder.
(d) Such Selling Shareholder will comply with the agreement
contained in Section 5(I)(h).
6. Conditions to the Obligations of the International
Underwriters. The obligations of the International Underwriters to purchase the
International Underwritten Securities and the International Option Securities,
as the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company and each of the Selling Shareholders
contained in this International Underwriting Agreement as of the Execution Time,
the Closing Date and any settlement date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company and each of the Selling Shareholders
made in any certificates pursuant to the provisions hereof, to the performance
by the Company and each of the Selling Shareholders of their respective
obligations under this International Underwriting Agreement and to the following
additional conditions:
(a) If the Registration Statement and the ADR Registration
Statement have not become effective prior to the Execution Time, unless
the International Representatives and the U.S. Representatives agree in
writing to a later time, the Registration Statement and the ADR
Registration Statement will become effective not later than (i) 6:00 PM
New York City time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 PM New York
City time on such date or (ii) 9:30 AM New York City time on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the U.S. Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the U.S. Prospectus, and
any such supplement, will be filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement or the ADR Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
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(b) The Company and STS shall have requested and caused Xxxxx &
Xxxxxxxx, Singapore counsel for the Company and STS, to have furnished
to the Representatives their opinion, to the effect set forth in the
U.S. Underwriting Agreement under Section 6(b).
(c) The Company and STS shall have furnished to the
Representatives the opinion of Xxxxxx & Xxxxxxx, United States counsel
for the Company and STS, to the effect set forth in the U.S.
Underwriting Agreement under Section 6(c).
(d) Each of the Selling Shareholders (other than STS) shall have
requested and caused its counsel, which counsel shall be reasonably
satisfactory to counsel for the Underwriters, to have furnished to the
Representatives their opinion, to the effect set forth in the U.S.
Underwriting Agreement under Section 6(d).
(e) The Depositary shall have requested and caused Skadden, Arps,
Slate, Xxxxxxx & Xxxx, counsel for the Depositary, to have furnished to
the Representatives their opinion, to the effect set forth in the U.S.
Underwriting Agreement under Section 6(e).
(f) The Representatives shall have received from Cleary,
Gottlieb, Xxxxx & Xxxxxxxx, counsel for the Underwriters, such opinion
or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the
Securities, the Registration Statement, the ADR Registration Statement,
the Prospectuses (together with any supplement thereto) and other
related matters as the International Representatives may reasonably
require, and the Company and each Selling Shareholder shall have
furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the ADR
Registration Statement, the Prospectuses, any supplements to the
Prospectuses and the Underwriting Agreements and that:
(i) the representations and warranties of the Company in
the Underwriting Agreements are true and correct in all material
respects on and as of the Closing Date with the same effect as if
made on the Closing Date and the Company has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or the ADR Registration Statement has been
issued and no proceedings for that purpose have been instituted
or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectuses (exclusive of any
supplement thereto), there has been no material
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adverse change in the condition (financial or otherwise),
earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectuses (exclusive of any
supplement thereto).
(h) Each Selling Shareholder shall have furnished to the
Representatives a certificate, signed by the Chairman of the Board or
the President and the principal financial or accounting officer of such
Selling Shareholder, dated the Closing Date, to the effect that (1) in
the case of STS, the signers of such certificate have carefully examined
the Registration Statement, the ADR Registration Statement, the
Prospectuses, any supplement to either of the Prospectuses and this
International Underwriting Agreement and the U.S. Underwriting Agreement
and (2) in the case of each Selling Shareholder, the representations and
warranties of such Selling Shareholder in this International
Underwriting Agreement and the U.S. Underwriting Agreement are true and
correct in all material respects on and as of the Closing Date to the
same effect as if made on the Closing Date.
(i) The Company shall have requested and caused KPMG to have
furnished to the Representatives at the Execution Time and at the
Closing Date a letter or letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to
the Representatives, to the effect set forth in Section 6(i) of the U.S.
Underwriting Agreement.
(j) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive
of any amendment thereof), and the Prospectuses (exclusive of any
supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph (i)
of this Section 6 or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Prospectuses (inclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof), the ADR
Registration Statement and the Prospectuses (exclusive of any supplement
thereto).
(k) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A
hereto from each shareholder of the Company listed in Schedule III
hereto.
(l) The Deposit Agreement shall be in full force and effect, and
shall not have been amended except as approved by the Representatives.
(m) The Depositary shall have furnished or caused to be furnished
to the Representatives certificates satisfactory to the Representatives
evidencing the deposit
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with the Depositary or its nominee of the Ordinary Shares in respect of
which ADSs to be purchased by the Underwriters on such Closing Date are
to be issued, and the execution, issuance, countersignature (if
applicable) and delivery of the ADRs evidencing such ADSs pursuant to
the Deposit Agreement and such other matters related thereto as the
Representatives shall reasonably request.
(n) The closing of the purchase of the U.S. Underwritten
Securities to be issued and sold by the Company and the Selling
Shareholders pursuant to the U.S. Underwriting Agreement shall occur
substantially concurrently (giving effect to the time difference between
New York and Singapore) with the closing of the purchase of the
International Underwritten Securities described herein.
(o) The Ordinary Shares shall have been listed and admitted and
authorized for trading on the SGX-ST, and the ADSs shall have been
included for quotation on The Nasdaq National Market, Inc., and
satisfactory evidence of all such actions shall have been provided to
the Representatives.
(p) Prior to the Closing Date, the Company and the Selling
Shareholders shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
International Underwriting Agreement and the U.S. Underwriting Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
International Underwriting Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this International Underwriting Agreement and all
obligations of the International Underwriters hereunder may be canceled at, or
at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company and each Selling Shareholder in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the offices of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the
Underwriters at 39th Floor, Bank of China Tower, One Garden Road, Central, Hong
Kong, on the Closing Date.
7. Commissions, Costs and Expenses. In consideration of the
agreement by the International Underwriters to subscribe for the International
Underwritten Shares and the International Option Shares (subject to the option
for the International Option Shares referred to in the preamble above being duly
exercised in accordance with Section 3 of this International Underwriting
Agreement), the Company and the Selling Shareholders (in proportion to the
number of securities offered by each of them), severally but not jointly, shall
pay to the International Underwriters on the Closing Date, or on the date on
which such Option Securities are purchased, as the case may be, a combined
management and underwriting commission of ____ per cent. and a selling
commission of ____ per cent. in respect of the International Underwritten Shares
or the International Option Shares, as the case may be. The amounts payable by
the Selling Shareholders to the International Underwriters pursuant to this
Section 7 shall be deducted from the amounts payable by the International
Underwriters to the Selling
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Shareholders pursuant to Section 2.
8. Reimbursement of Underwriters' Expenses. The Company and each
Selling Shareholder have agreed, severally but not jointly (in proportion to the
number of securities being offered by each of them, including any Option
Securities which the Underwriters shall have elected to purchase), to reimburse
the Underwriters through Xxxxxxx Xxxxx Barney on demand for out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities, up to an aggregate maximum of $________. The amounts payable by
the Selling Shareholders to the International Underwriters pursuant to this
Section 8 shall be deducted from the amounts payable by the International
Underwriters to the Selling Shareholders pursuant to Section 2. The
International Underwriters may also deduct from the amounts payable by the
International Underwriters to the Selling Shareholders pursuant to Section 2 an
amount to be held by the International Underwriters as a reserve for expenses
that have not been calculated at the time of closing; provided, however, that
(1) the amount of this reserve may not exceed $________ in total for all Selling
Shareholders in the Global Offering, (2) all deductions shall be made in
proportion to the number of securities being offered by each of the Selling
Shareholders, including any Option Securities which the International
Underwriters shall have elected to purchase, and (3) the International
Underwriters shall pay to the Selling Shareholders within ____ days after the
Closing Date the balance of this reserve, if any, that has not been applied
against such expenses. In addition, if the sale of the Securities provided for
under the Underwriting Agreements is not consummated because any condition to
the obligations of the U.S. Underwriters or the International Underwriters set
forth in Section 6 of the Underwriting Agreements is not satisfied, because of
any termination pursuant to Section 11 of the Underwriting Agreements or because
of any refusal, inability or failure on the part of the Company or any Selling
Shareholders to perform any agreement under the Underwriting Agreements or
comply with any provision of the Underwriting Agreements other than by reason of
a default by any of the Underwriters, the Company and each Selling Shareholder
will, severally but not jointly (in proportion to the number of securities being
offered by each of them, including any Option Securities which the Underwriters
shall have elected to purchase), reimburse the Underwriters through Xxxxxxx
Xxxxx Xxxxxx on demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been reasonably incurred by them
in connection with the proposed purchase and sale of the Securities, up to an
aggregate maximum of $________. If the Company makes any payments to the
Underwriters under this Section 8 because of any Selling Shareholder's refusal,
inability or failure to satisfy any condition to the obligations of the
Underwriters set forth in Section 6, the Selling Shareholders shall each
reimburse the Company on demand for all amounts so paid, pro rata in proportion
to the percentage of Securities to be sold by them.
9. Indemnification and Contribution.
(a) The Company (to the extent permitted by applicable law) and
STS jointly and severally agree to indemnify and hold harmless each
International Underwriter, the directors, officers, employees and agents
of each International Underwriter and each person who controls any
International Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject
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under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement originally filed
or in any amendment thereof, or in the ADR Registration Statement as
originally filed or in any amendment thereof, or in any Preliminary
Prospectus or in either of the Prospectuses, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company and STS will not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of any International Underwriter through the
International Representatives specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the
Company or STS may otherwise have; provided further, that with respect
to any untrue statement or omission of material fact made in any
Preliminary Prospectus, the indemnity agreement contained in this
Section 9(a) shall not inure to the benefit of any International
Underwriter from whom the person describing any such loss, claim, damage
or liability purchased the Securities, or any person controlling such
International Underwriter, to the extent that any such loss, claim,
damage or liability of each International Underwriter (or any person
controlling such International Underwriter) occurs under the
circumstance where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (w) the Company
had previously furnished copies of the Prospectus to the
Representatives, (x) delivery of the Prospectus was required by the Act
to be made to such person, (y) the untrue statement or omission of a
material fact contained in the Preliminary Prospectus was corrected in
the Prospectus and (z) there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Securities to such
person, a copy of the Prospectus.
(b) Each International Underwriter severally and not jointly
agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration Statement, or
the ADR Registration Statement, and each person who controls the Company
within the meaning of either the Act or Exchange Act and STS, to the
same extent as the foregoing indemnity to each International
Underwriter, but only with reference to written information relating to
such International Underwriter furnished to the Company by or on behalf
of such International Underwriter through the International
Representatives specifically for inclusion in the documents referred to
in the foregoing indemnity. This indemnity agreement will be in addition
to any liability which any International Underwriter may otherwise have.
The Company and STS acknowledge that (A) the names of the Underwriters
contained in any Preliminary Prospectus or either of the Prospectuses
and their respective participation in the sale of the Securities as set
forth in the two charts under the heading "Underwriting" in any
Preliminary Prospectus or either of the Prospectuses, (B) the statements
set forth in the last paragraph on the front
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cover page of any Preliminary Prospectus or either of the Prospectuses
regarding delivery of the Securities (and the ADSs representing such
Securities) and (C) the statements set forth in the seventh, ninth,
thirteenth and fifteenth paragraphs under the heading "Underwriting" in
any Preliminary Prospectus or either of the Prospectuses constitute the
only information furnished in writing by or on behalf of the several
International Underwriters for inclusion in any Preliminary Prospectus
or either of the Prospectuses.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action
or (iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party. It is
understood, however, that the Company shall, in connection with any one
such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of only one separate
firm of attorneys (in addition to any local counsel) at any time for all
such Underwriters and controlling persons, which firm shall be
designated in writing by Xxxxxxx Xxxxx Barney. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding
in respect of which indemnification or contribution may be sought under
this International Underwriting Agreement (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional
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release of each indemnified party from liability arising out of such
claim, action, suit or proceeding. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 9 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company (to the extent
permitted by applicable law), STS and the International Underwriters
severally agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively
"Losses") to which the Company STS and one or more of the International
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company STS and by the
International Underwriters from the offering of the International
Securities; provided, however, that in no case shall any International
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the International Securities)
be responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such International
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company (to the
extent permitted by applicable law), STS and the International
Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Company, of STS and of the International Underwriters in connection
with the statements or omissions which resulted in such Losses as well
as any other relevant equitable considerations. Benefits received by the
Company and by STS shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) received by each of them,
and benefits received by the International Underwriters shall be deemed
to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the International Offering
Memorandum. Relative fault shall be determined by reference to, among
other things, whether any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information provided by the Company, by STS or by the International
Underwriters, the intent of the parties and their relative knowledge
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company, STS and the International
Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person who
controls an International Underwriter within the meaning of either the
Act or the Exchange Act and each director, officer, employee and agent
of an International Underwriter shall have the same rights to
contribution as such International Underwriter, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and the ADR Registration Statement and each
director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions
of this paragraph (d).
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(e) The liability of each Selling Shareholder under its
representations and warranties contained in Section 1 hereof (and of STS
under the indemnity and contribution agreements contained in this
Section 9) shall be limited to an amount equal to the offering price of
the International Securities sold by such Selling Shareholder to the
International Underwriters net of underwriting and selling commissions
paid by such Selling Shareholder under this Agreement. The Company and
the Selling Shareholders may agree, as among themselves and without
limiting the rights of the International Underwriters under this
International Underwriting Agreement, as to the respective amounts of
such liability for which they each shall be responsible.
10. Default by an Underwriter. If any one or more International
Underwriters shall fail to purchase and pay for any of the International
Securities agreed to be purchased by such International Underwriter or
International Underwriters under this International Underwriting Agreement and
such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining International Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of International Securities set forth opposite
their names in Schedule I hereto bears to the aggregate amount of International
Securities set forth opposite the names of all the remaining International
Underwriters) the International Securities which the defaulting International
Underwriter or International Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of International
Securities which the defaulting International Underwriter or International
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule I hereto, the remaining International
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the International Securities, and if such
nondefaulting International Underwriters do not purchase all the International
Securities, this Agreement will terminate without liability to any nondefaulting
International Underwriter, the Selling Shareholders or the Company. In the event
of a default by any International Underwriter as set forth in this Section 10,
the Closing Date shall be postponed for such period, not exceeding five Business
Days, as the International Representatives shall determine in order that the
required changes in the Registration Statement, the ADR Registration Statement
and the Prospectuses or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting International
Underwriter of its liability, if any, to the Company, the Selling Shareholders
and any nondefaulting International Underwriter for damages occasioned by its
default under this International Underwriting Agreement.
11. Termination. This International Underwriting Agreement shall
be subject to termination in the absolute discretion of the International
Representatives, by notice given to the Company prior to delivery of and payment
for the International Securities, if prior to such time (i) trading in the
Company's ADSs shall have been suspended by the Commission or the Nasdaq
National Market, Inc., trading in the Company's Ordinary Shares shall have been
suspended by the SGX-ST, trading in securities generally on the New York Stock
Exchange, The Nasdaq National Market, Inc. or the SGX-ST shall have been
suspended or limited or minimum prices shall have been established on such
exchange or The Nasdaq National Market, Inc., (ii) a banking moratorium shall
have been declared either by U.S. Federal, New York State or Singapore
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities involving the United States or Singapore, declaration by the United
States or Singapore of a
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national emergency or war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
International Representatives, impracticable or inadvisable to proceed with the
offering or delivery of the prospectus as contemplated by the International
Offering Memorandum (exclusive of any supplement thereto).
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of each Selling Shareholder and of the International
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
International Underwriter, any Selling Shareholders or the Company or any of the
officers, directors or controlling persons referred to in Section 9 hereof, and
will survive delivery of and payment for the International Securities. The
provisions of Sections 8 and 9 hereof shall survive the termination or
cancellation of this International Underwriting Agreement.
13. Notices. All communications under this International
Underwriting Agreement will be in writing and effective only on receipt, and, if
sent to the International Representatives, will be mailed, delivered or
telefaxed to the Salomon Brothers International Limited General Counsel (fax
no.: (00) 000-000-0000) and confirmed to such General Counsel at Salomon
Brothers International Limited, Victoria Plaza, 111 Buckingham Palace Road,
London SW1W 0SB England, Attention: General Counsel; or, if sent to the Company,
will be mailed, delivered or telefaxed to the Legal Department (fax no.: (65)
0000-000) and confirmed to it at 00 Xxxxxxxxx Xxxxxxxxxx Xxxx X, Xxxxxx 0,
Xxxxxxxxx 000000, Attention: Legal Department; or if sent to any Selling
Shareholder, will be mailed, delivered or telefaxed and confirmed to it at the
address set forth in Schedule II hereto.
14. Successors. This International Underwriting Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 9 hereof, and no other person will
have any right or obligation under this International Underwriting Agreement.
15. Jurisdiction. Each of the Company and STS agrees that any
suit, action or proceeding against the Company brought by any International
Underwriter, by the directors, officers, employees and agents of any
International Underwriter or by any person who controls any International
Underwriter, arising out of or based upon this International Underwriting
Agreement or the transactions contemplated hereby may be instituted in any New
York Court; and waives any objection which it may now or hereafter have to the
laying of venue of any such proceeding, and irrevocably accepts and submits to
the non-exclusive jurisdiction of such courts in any suit, action or proceeding.
Each of the Company and STS has appointed Chartered Semiconductor Manufacturing,
Inc., at 0000 XxXxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 as its authorized
agent, (the "Authorized Agent") upon whom process may be served in any suit,
action or proceeding arising out of or based upon this Agreement or the
transactions contemplated herein which may be instituted in any New York Court
by any International Underwriter, by the directors, officers, employees and
agents of any International Underwriter or by any person who controls any
International Underwriter and expressly accepts the non-exclusive jurisdiction
of any such court in respect of any such suit, action or proceeding. Each of the
Company and STS consents to process being served in any action or proceeding by
mailing a copy thereof by registered or certified mail to the Authorized Agent.
Each of the Company and STS hereby
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represents and warrants that the Authorized Agent has accepted such appointment
and has agreed to act as said agent for service of process, and the Company
agrees to take any and all action, including the filing of any and all documents
that may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent shall be deemed, in
every respect, effective service of process upon the Company and STS.
Notwithstanding the foregoing, any action arising out of or based upon this
Agreement may be instituted by any International Underwriter, by the directors,
officers, employees and agents of any International Underwriter or by any person
who controls any International Underwriter, in any other court of competent
jurisdiction, including those in Singapore.
The provisions of this Section 15 shall survive any termination
of the International Underwriting Agreement, in whole or in part.
16. Applicable Law. This International Underwriting Agreement
will be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be performed within the State of
New York.
17. Currency. Each reference in this International Underwriting
Agreement to U.S. dollars (the "relevant currency") is of the essence. To the
fullest extent permitted by law, the obligations of each of the Company and the
Selling Shareholders in respect of any amount due under this International
Underwriting Agreement will, notwithstanding any payment in any other currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in the relevant currency that the party entitled to receive such
payment may, in accordance with its normal procedures, purchase with the sum
paid in such other currency (after any premium and costs of exchange) on the
Business Day immediately following the day on which such party receives such
payment. If the amount in the relevant currency that may be so purchased for any
reason falls short of the amount originally due, the Company or the Selling
Shareholder making such payment will pay such additional amounts, in the
relevant currency, as may be necessary to compensate for the shortfall. If,
alternatively, the amount in the relevant currency that may be so purchased for
any reason exceeds the amount originally due, the party entitled to receive such
original amount will return such excess amounts, in the relevant currency, to
the Company or the Selling Shareholders. Any obligation of the Company or the
Selling Shareholders not discharged by such payment will, to the fullest extent
permitted by applicable law, be due as a separate and independent obligation
and, until discharged as provided herein, will continue in full force and
effect.
18. Waiver of Immunity. To the extent that the Company or the
Selling Shareholders has or hereafter may acquire any immunity (sovereign or
otherwise) from any legal action, suit or proceeding, from jurisdiction of any
court or from set-off or any legal process (whether service or notice,
attachment in aid or otherwise) with respect to itself or any of its property,
each of the Company and each of the Selling Shareholders hereby irrevocably
waives and agrees not to plead or claim such immunity in respect of its
obligations under this Agreement.
19. Counterparts. This International Underwriting Agreement may
be signed in one or more counterparts, each of which shall constitute an
original, and all of which together shall constitute one and the same agreement.
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20. Headings. The section headings used in this International
Underwriting Agreement are for convenience only and shall not affect the
construction hereof.
21. Definitions. The terms which follow, when used in this
International Underwriting Agreement, shall have the meanings indicated.
"Act" shall mean the United States Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"ADR" shall mean the certificate(s) issued by the Depositary to
evidence the American Depositary Shares issued under the terms of the
Deposit Agreement.
"ADR Registration Statement" shall mean the registration
statement referred to in paragraph 1(c) above, including all exhibits
thereto, each as amended at the time such part of the registration
statement became effective.
"Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in
The City of New York, New York and Singapore are authorized or obligated
by law, executive order or regulation to close.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement and the ADR Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or becomes effective.
"Exchange Act" shall mean the United States Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Execution Time" shall mean the date and time that this
International Underwriting Agreement is executed and delivered by the
parties hereto.
"International Offering Memorandum" shall mean such form of
offering memorandum relating to the International Securities.
"International Preliminary Offering Memorandum" shall mean any
preliminary offering memorandum with respect to the offering of the
International Securities.
"International Representatives" shall mean the addressees of this
International Underwriting Agreement.
"International Securities" shall mean the International
Underwritten Securities and the International Option Securities.
"International Underwriters" shall mean the several Underwriters
named in Schedule I to the International Underwriting Agreement.
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"International Underwriting Agreement" shall mean this agreement
relating to the sale of the International Securities by the Company and
the Selling Shareholders to the International Underwriters.
"New York Courts" shall mean the U.S. Federal or State courts
located in the State of New York, County of New York.
"Option Securities" shall mean the U.S. Option Securities and the
International Option Securities.
"Option Shares" shall mean the U.S. Option Shares and the
International Option Shares.
"Preliminary Prospectuses" and each "Preliminary Prospectus"
shall mean the U.S. Preliminary Prospectus and the International
Preliminary Offering Memorandum.
"Prospectuses" and "each Prospectus" shall mean the U.S.
Prospectus and the International Offering Memorandum.
"RCB" shall mean the Singapore Registrar of Companies and
Businesses.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended or such Rule
462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Representatives" shall mean the U.S. Representatives and the
International Representatives.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under
the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Securities" shall mean the U.S. Securities and the International
Securities.
"Selling Shareholders" shall mean the persons named on Schedule
II to the U.S. Underwriting Agreement and the International Underwriting
Agreement.
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"Shares" shall mean the U.S. Shares and the International Shares.
"Statement" shall mean the Statement of Material Facts filed with
the RCB.
"STS" shall mean Singapore Technologies Semiconductors Pte Ltd.
"Subsidiary" shall mean each of Chartered Semiconductor
Manufacturing Inc. and Chartered Silicon Partners Pte Ltd.
"Underwriter" and "Underwriters" shall mean the U.S. Underwriters
and the International Underwriters.
"Underwritten Securities" shall mean the U.S. Underwritten
Securities and the International Underwritten Securities.
"Underwritten Shares" shall mean the U.S. Underwritten Shares and
the International Underwritten Shares.
"United States or Canadian Person" shall mean any person who is a
national or resident of the United States or Canada, any corporation,
partnership, or other entity created or organized in or under the laws
of the United States or Canada or of any political subdivision thereof,
or any estate or trust the income of which is subject to United States
or Canadian Federal income taxation, regardless of its source (other
than any non-United States or non-Canadian branch of any United States
or Canadian Person), and shall include any United States or Canadian
branch of a person other than a United States or Canadian Person.
"U.S." or "United States" shall mean the United States of America
(including the states thereof and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction.
"U.S. Preliminary Prospectus" shall mean any preliminary
prospectus with respect to the offering of the U.S. Securities referred
to in paragraph 1(a) above and any preliminary prospectus with respect
to the offering of the U.S. Securities, as the case may be, included in
the Registration Statement at the Effective Date that omits Rule 430A
Information.
"U.S. Prospectus" shall mean the prospectus relating to the U.S.
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"U.S. Representatives" shall mean the addressees of the U.S.
Underwriting Agreement.
"U.S. Securities" shall mean the U.S. Underwritten Securities and
the U.S. Option Securities.
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"U.S. Underwriters" shall mean the several Underwriters named in
Schedule I to the U.S. Underwriting Agreement.
"U.S. Underwriting Agreement" shall mean the U.S. Underwriting
Agreement dated the date hereof relating to the sale of the U.S.
Securities by the Company and the Selling Shareholders to the U.S.
Underwriters.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several International Underwriters.
Very truly yours,
Chartered Semiconductor Manufacturing
Ltd
By:
-------------------------------------
Name:
Title:
Singapore Technologies Semiconductors
Pte Ltd
By:
-------------------------------------
Name:
Title:
Alliance Semiconductor Corporation
By:
-------------------------------------
Name:
Title: Attorney-in-fact
Analog Devices, Inc.
By:
-------------------------------------
Name:
Title: Attorney-in-fact
Actel Corporation
By:
-------------------------------------
Name:
Title: Attorney-in-fact
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers International Limited
By:
-------------------------------------
Name:
Title:
For itself and the other several International
Representatives and International
Underwriters named in Schedule I to
the foregoing Agreement.
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ANNEX A
List of Subsidiaries
Chartered Semiconductor Manufacturing, Inc.
Chartered Silicon Partners Pte Ltd
40
SCHEDULE I
Number of
International Underwriter International Underwritten Shares
------------------------- ---------------------------------
Salomon Brothers International Limited..............
Credit Suisse First Boston (Singapore) Limited......
Chase Securities Inc................................
Overseas Union Bank Limited.........................
SG Securities (Singapore) Pte. Ltd..................
Xxxxxxx Xxxxxx & Company Pte Ltd....................
Wit SoundView Corporation...........................
Total............................................... 70,000,000
----------
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SCHEDULE II
Number of
Selling Shareholders International Underwritten Shares
-------------------- ---------------------------------
Singapore Technologies Semiconductors Pte Ltd....... 19,896,696
00 Xxxxxxx Xxxx #00-00
Xxxxxxxxx 000000
Analog Devices, Inc................................. 7,750,000
Three Xxxxxxxxxx Xxx
Xxxxxxx, XX 00000
XXX
Alliance Semiconductor Corporation.................. 6,000,000
0000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
XXX
Actel Corporation................................... 5,153,304
----------
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
XXX
Total............................................... 38,800,000
----------
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SCHEDULE III
List of Signatories to Letter Attached as Exhibit A
1. Singapore Technologies Pte Ltd
43
EXHIBIT A
Chartered Semiconductor Manufacturing Ltd
Public Offering of Ordinary Shares
May , 2000
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxx Xxxxxxxx International Limited
Credit Suisse First Boston Corporation
Credit Suisse First Boston (Singapore) Limited
Chase Securities Inc.
Overseas Union Bank Limited
XX Xxxxx Securities Corporation
SG Securities (Singapore) Pte. Ltd.
Xxxxxxx Ballas & Company Pte Ltd
Wit SoundView Corporation
As Representatives of the several U.S. Underwriters
and International Underwriters
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed U.S. Underwriting Agreement and International Underwriting Agreement
(the "Underwriting Agreements"), between Chartered Semiconductor Manufacturing
Ltd, a corporation organized under the laws of Singapore (the "Company"), the
Selling Shareholders named therein (the "Selling Shareholders"), and you as
representatives of the group of U.S. and International Underwriters named
therein, relating to an underwritten public offering of ordinary shares (the
"Ordinary Shares") of the Company, directly or in the form of American
Depositary Shares ("ADSs").
In order to induce you and the other U.S. Underwriters and
International Underwriters to enter into the Underwriting Agreements, the
undersigned will not, without the prior consent of Xxxxxxx Xxxxx Barney Inc.,
offer, sell, contract to sell, pledge or otherwise dispose of (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise), directly or indirectly, or announce the offering of, any Ordinary
Shares or ADSs or any securities convertible into, or exercisable or
exchangeable for, Ordinary Shares or ADSs, for a period of 90 days following the
date of the Underwriting Agreements, other than Ordinary Shares disposed of as
bona fide gifts approved by Xxxxxxx Xxxxx Xxxxxx Inc.
If for any reason the Underwriting Agreements shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreements), the
agreement set forth above shall likewise be terminated.
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Yours very truly,
[Signature]
[Name and address]
C-2
