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Exhibit 1.1
EXECUTION COPY
Chartered Semiconductor Manufacturing Ltd
US$500,000,000*
2.50% Senior Convertible Notes due 2006
Convertible into Ordinary Shares (S$0.26 par value) or
American Depositary Shares Representing Ordinary Shares
Each American Depositary Share representing
the right to receive ten Ordinary Shares
Underwriting Agreement
Singapore
March 27, 2001
Xxxxxxx Xxxxx (Singapore) Pte. Ltd.
As Representatives of the several Underwriters
0 Xxxxxxx Xxxxxx
#00-00 Xxxxxxxx Xxxxx
Xxxxxxxxx 000000
Ladies and Gentlemen:
Chartered Semiconductor Manufacturing Ltd, a corporation organized under
the laws of Singapore (the "Company"), proposes to sell to the several
underwriters named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, US$500,000,000 principal
amount of its 2.50% Senior Convertible Notes due 2006 (the "Underwritten
Notes"). The Company also proposes to grant to the Underwriters an option to
purchase up to US$75,000,000 additional principal amount of the Notes to cover
overallotments (the "Option Notes" and together with the Underwritten Notes, the
"Notes" or the "Securities"). The Notes are to be issued under an indenture (the
"Base Indenture") to be dated as of the Closing Date (as defined below), between
the Company and Xxxxx Fargo Bank Minnesota, National Association, as trustee
(the "Trustee"), as supplemented by a Supplemental Indenture dated as of the
Closing Date (as defined below) between the Company and the Trustee (the
"Supplemental Indenture" and, together with the Base Indenture, the "Indenture")
and are convertible into ordinary shares (the "Ordinary Shares"), S$0.26 par
value per share, or American Depositary Shares (the "ADS") representing Ordinary
Shares. The ADSs will be evidenced by American Depositary Receipts ("ADRs") and
will be issued by Citibank, N.A., as depositary (the "Depositary") pursuant to
the deposit agreement, dated as of November 4, 1999 (the "Deposit Agreement"),
entered into among the Company, the Depositary and all holders from time to time
of ADSs. Each ADS will represent ten Ordinary Shares and each ADR may represent
any number
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* Plus an option to purchase from Chartered Semiconductor Manufacturing Ltd
up to US$75,000,000 additional principal amount of the Notes to cover
overallotments.
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of ADSs. Unless the context otherwise requires, the term "Ordinary Shares" shall
be deemed to refer to Ordinary Shares as well as to any ADSs representing such
securities and the ADRs evidencing such ADSs.
In connection with the Offering (as defined below), the Company has made a
listing application to the Singapore Exchange Securities Trading Limited (the
"SGX-ST") for the listing on the SGX-ST of the Ordinary Shares which may be
issued upon conversion of the Notes and has lodged Reports by Issuer to
Registrar of Intention to Sell Shares, Debentures or Units under Section 106I(1)
pursuant to an exemption under Division 5A (Forms 30B) with the Singapore
Registrar of Companies and Businesses to invoke the exemption from the
prospectus registration requirements under Sections 106C and 106D of the
Companies Act, Chapter 50 of Singapore.
In connection with the Offering (as defined below), the Company has made a
listing application to the Luxembourg Stock Exchange.
Unless the context otherwise requires, the terms "Underwritten Securities",
"Option Securities" and "Securities" shall be deemed to refer, respectively, to
Underwritten Notes, Option Notes and Notes. The offering of the Notes is
referred to herein as the "Offering".
To the extent there are no additional Underwriters listed on Schedule I
other than you, the term Representatives as used in this Underwriting Agreement
shall mean you, as Underwriter, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires. The use of the
neuter in this Underwriting Agreement shall include the feminine and masculine
wherever appropriate. Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 6 of Form F-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Prospectus or the Final Prospectus, as the
case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus or the Final Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference.
Certain terms used in this Underwriting Agreement are defined in Section 21
hereof.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form F-3 under the
Act and has prepared and filed with the Commission a registration statement
(file number 333-56878) on Form F-3, including a related Basic Prospectus,
for the registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto,
including a Preliminary Prospectus, each of which has previously been
furnished to you. The Company will next file with the Commission either (1)
after
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the Effective Date of the Registration Statement, a Preliminary Prospectus
relating to the Securities in accordance with Rule 424(b) or (2) a Final
Prospectus in accordance with Rules 415 and 424(b). The Company has
included in the Registration Statement, as amended at the Effective Date,
all information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in the Registration Statement. The
Final Prospectus shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the
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 Basic Prospectus and any Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made therein.
The Registration Statement, at the Execution Time, meets the requirements
set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Final 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 Final Prospectus (and any supplements thereto)
will comply in all material respects with the applicable requirements of
the Act, the Exchange Act and the Trust Indenture Act and the respective
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; on the Closing Date, the Indenture did or will comply in all
material respects with the applicable requirements of the Trust Indenture
Act and the rules thereunder; and on the Effective Date, each Final
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 Final Prospectus (together with any
supplement thereto) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement, or the Final Prospectus (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 Final
Prospectus (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, any
Preliminary Prospectus or the Final Prospectus is limited to (A) the names
of the Underwriters and their respective participation in the sale of the
Securities as set forth in the first paragraph under the heading
"Underwriting" in the Preliminary Prospectus or Final Prospectus, (B) the
statements set forth in the second sentence of the last paragraph on the
front cover page of the Preliminary Prospectus or Final Prospectus
regarding delivery of the Securities and (C) the statements set forth in
the fourth, fifth, fifteenth and sixteenth paragraphs and the
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second sentence of the sixth paragraph and the third sentence of the
twelfth paragraph under the heading "Underwriting" in the Preliminary
Prospectus or Final Prospectus.
(c) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Final Prospectus, at the
time they were or hereafter are filed with the Commission, complied and
will comply at the time the Registration Statement became effective, at the
time the Final Prospectus was issued and on the Closing Date (and, if
later, at the time of filing) in all material respects with the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and, when read together with the other information
in the Basic Prospectus, at the time the Registration Statement became
effective, at the time the Final Prospectus was issued and on the Closing
Date, did not and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(d) 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 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.
(e) Each of the Company, the Subsidiaries and Silicon Manufacturing
Partners Pte. Ltd. ("SMP") 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
Final Prospectus, 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, the
Subsidiaries and SMP, taken as a whole.
(f) All the outstanding share capital of each Subsidiary and SMP has
been duly and validly authorized and issued and is fully paid and
non-assessable and, except for such shares of (i) 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 and (ii) SMP as are owned by Agere Systems Singapore
Pte. Ltd., which shares do not exceed 51% of the outstanding voting shares
of SMP, all the outstanding shares of capital stock of the Subsidiaries and
SMP are owned by the Company directly free and clear of any perfected
security interests, liens or encumbrances.
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(g) The Company's authorized, issued and outstanding equity
capitalization is as set forth in the Final Prospectus. The outstanding
Ordinary Shares have been duly and validly authorized and issued and are
fully paid and non-assessable. The Securities have been duly authorized
and, at the Closing Time, will have been duly executed by the Company and,
when authenticated, issued and delivered in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor as
provided in this Underwriting Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and will be
in the form contemplated by, and entitled to the benefits of, the
Indenture. The Securities 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 as disclosed in the Final Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of
capital stock of or ownership interests in the Company are outstanding. The
Securities being sold by the Company are freely transferable by the Company
to or for the account of the several Underwriters, their designees and the
initial purchasers thereof. Except as set forth in the Final Prospectus,
there are no restrictions on subsequent transfers of the Securities under
the laws of Singapore and of the United States.
(h) Upon issuance and delivery of the Securities in accordance with
this Underwriting Agreement and the Indenture, the Securities will be
convertible at the option of the holder thereof for Ordinary Shares or ADSs
in accordance with the terms of the Securities and the Indenture; the
Ordinary Shares issuable upon conversion of the Securities have been duly
authorized and such shares, when issued upon such conversion, will be
validly issued and will be fully paid and non-assessable; except for
actions, if any, that may be required to increase the authorized share
capital of the Company, no further approvals by the Company's board of
directors (except in respect of allotments and issuances of the Ordinary
Shares), its shareholders or otherwise are required for the issuance of
such Ordinary Shares; no holder of such shares will be subject to personal
liability by reason of being such a holder; and the issuance of such shares
upon such conversion will not be subject to the preemptive or other similar
rights of any securityholder of the Company.
(i) The Ordinary Shares and ADSs of the Company conform in all
material respects to the description thereof contained or incorporated by
reference in the Final Prospectus. The Articles of Association described in
the Final Prospectus under the heading "Description of Ordinary Shares" are
in full force and effect.
(j) The Indenture has been duly authorized by the Company and duly
qualified under the Trust Indenture Act and, when duly executed and
delivered by the Company and the Trustee, will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may
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be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
(k) Each of this Underwriting Agreement and the Deposit Agreement has
been duly authorized, executed and delivered by the Company.
(l) There is no franchise, contract or other document of a character
required to be described in the Registration Statement, the ADR
Registration Statement or the Final Prospectus, 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 Final
Prospectus 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 Final Prospectus under the heading "Taxation", fairly
summarize the matters therein described.
(m) 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 upon conversion of the Securities, 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.
(n) No taxes, imposts or duties of any nature (including, without
limitation, stamp or other issuance or transfer taxes or duties and 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 or therein in connection with (A) the execution
and delivery of the Underwriting Agreement, (B) the issuance of the
Securities by the Company in connection with the Offering, (C) the sale and
delivery of the Securities by the Company to the Underwriters in the manner
contemplated in the Underwriting Agreement, or (D) except as disclosed in
the Final Prospectus under the heading "Taxation -- Singapore Taxation",
the resale and delivery of such Securities by the Underwriters in the
manner contemplated in the Final Prospectus.
(o) Except as described in the Final Prospectus, (1) all payments on
the Securities will be made by the Company without withholding or deduction
for or on account of any and all taxes, duties or other charges or
whatsoever nature (including, without limitation, income taxes) imposed by
Singapore or any political subdivision or taxing authority thereof or
therein and (2) no taxes (including, without limitation, stamp, transfer or
other taxes) will be imposed by Singapore or any other political
subdivision or taxing authority thereof or therein upon conversion of the
Securities in accordance with the terms thereof and the terms of the
Indenture.
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(p) Except as described in the Final Prospectus, 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 Ordinary Shares, 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.
(q) 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 Underwriting Agreement, the Indenture and the Deposit Agreement,
except (A) such as have been obtained under the Act, the Exchange Act, the
Trust Indenture Act or 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 Agreement and
the Final Prospectus, (C) such as may be required pursuant to the National
Association of Securities Dealers, Inc. rules, (D) such as may be required
pursuant to the letter from the SGX-ST dated March 23, 2001 granting
approval in-principle for the listing and quotation of the Ordinary Shares
to be issued upon the conversion of the Notes in accordance with its terms,
which such approvals have been obtained, and (E) the submission of the
Return on Debt Securities in respect of the Notes to the Monetary Authority
of Singapore and the Inland Revenue Authority of Singapore by Xxxxxxx Xxxxx
(Singapore) Pte. Ltd. No approval is required for quotation on the Nasdaq
National Market, Inc., of the ADSs issuable upon conversion of the
Securities in accordance with the terms of the Securities and the
Indenture.
(r) None of the issue and sale of the Securities, the consummation of
any other of the transactions contemplated in this Underwriting Agreement,
the Indenture or the Deposit 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, any of the Subsidiaries or SMP pursuant to, (i) the
Memorandum and Articles of Association of the Company or the constituent
documents of any of the Subsidiaries or SMP, (ii) assuming that the
issuance of the Ordinary Shares issuable upon conversion of the Notes in
accordance with the terms thereof will not result in Singapore Technologies
Pte Ltd holding, either directly or indirectly, less than 51 per cent. of
the issued share capital of the Company, 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, any of the Subsidiaries or SMP
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, any of the Subsidiaries or SMP of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company, any of the Subsidiaries or SMP 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 Underwriting Agreement or the
consummation of any of the transactions contemplated herein or (B) the
condition
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(financial or otherwise), prospects, earnings, business or properties of
the Company, the Subsidiaries and SMP, taken as a whole.
(s) 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 Final Prospectus, will not be an "investment company" as
defined in the United States Investment Company Act of 1940, as amended
(the "1940 Act").
(t) The Company is not a Passive Foreign Investment Company ("PFIC")
within the meaning of Section 1297 of the United States Internal Revenue
Code of 1986, as amended, and does not expect to become a PFIC in the
future.
(u) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement or the ADR
Registration Statement.
(v) The consolidated historical financial statements and schedules of
the Company (including the related notes) included in the Registration
Statement and the Final Prospectus 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
selected financial data included in the Registration Statement and the
Final Prospectus fairly present in all material respects, on the basis
stated in the Registration Statement and the Final Prospectus, the
information included therein.
(w) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company, any of the Subsidiaries or SMP 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
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, the Subsidiaries and SMP,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(x) Each of the Company, the Subsidiaries and SMP 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, any of the Subsidiaries or SMP 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, any of the Subsidiaries or SMP, in
each case except as described in or contemplated in the Final Prospectus.
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(y) None of the Company, any of the Subsidiaries or, to the knowledge
of the Company, SMP, 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, any of the Subsidiaries or SMP
of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company, any of
the Subsidiaries or SMP 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 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, the
Subsidiaries and SMP, taken as a whole.
(z) 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 Final Prospectus, are independent public
accountants with respect to the Company within the meaning of the Act and
the applicable published rules and regulations thereunder.
(aa) 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, the Ordinary
Shares or the ADSs, provided, however, that this provision shall not apply
to any trading or stabilization activities conducted by the Underwriters.
(bb) Each of the Company, the Subsidiaries and, to the knowledge of
the Company, SMP 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, the Subsidiaries and SMP, taken as a whole.
Neither the Company, any of the Subsidiaries nor, to the knowledge of the
Company, SMP 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, the Subsidiaries and SMP, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in the Final Prospectus (exclusive of any
supplement thereto).
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(cc) Except as described in the Final Prospectus, for the periods
described in the Final Prospectus, the Company and its Subsidiaries do not
have any material capital commitments.
(dd) No labor dispute with the employees of the Company, any of the
Subsidiaries or, to the knowledge of the Company, SMP 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 the Company, any of the
Subsidiaries or, to the knowledge of the Company, SMP, that could have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company, the
Subsidiaries and SMP, 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 Final Prospectus (exclusive of any supplement thereto).
(ee) Each of the Company, the Subsidiaries and, to the knowledge of
the Company, SMP 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, any of the Subsidiaries or, to
the knowledge of the Company, SMP or their respective businesses, assets,
employees, officers and directors are in full force and effect; each of the
Company, the Subsidiaries and, to the knowledge of the Company, SMP is in
compliance with the terms of such policies and instruments in all material
respects; and there are no claims by the Company, any of the Subsidiaries
and, to the knowledge of the Company, SMP 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, any of
the Subsidiaries nor, to the knowledge of the Company, SMP has been refused
any insurance coverage sought or applied for. The Company has no reason to
believe that either the Company, any of the Subsidiaries or, to the
knowledge of the Company, SMP 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, the Subsidiaries and SMP, 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 Final Prospectus (exclusive of any
supplement thereto).
(ff) None of the Company's Subsidiaries and, to the knowledge of the
Company, SMP 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, another Subsidiary or SMP, except for certain restrictions as set
forth (i) 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 Final Prospectus, (ii)
in the Memorandum and Articles of Association of SMP and (iii) in the
Syndicated Credit Facilities Agreement dated September 3, 1999 by and among
SMP, ABN AMRO Bank
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N.V., Singapore Branch, Citibank, N.A. Singapore Branch, and Overseas Union
Bank Limited and certain other lenders named therein.
(gg) The Company, the Subsidiaries and, to the knowledge of the
Company, SMP 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 Final Prospectus, 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, the Subsidiaries and SMP,
taken as a whole, whether or not arising from the ordinary course of
business. Except as set forth in the Final Prospectus under the captions
"Risk Factors" or "Business -- Intellectual Property," to the Company's
best knowledge, (a) there are no rights of third parties to any such
Intellectual Property; (b) there is no material infringement by third
parties of any such Intellectual Property; (c) there is no pending or
threatened action, suit, proceeding or claim by others challenging the
Company's rights in or to any such Intellectual Property, and the Company
is unaware of any facts which would form a reasonable basis for any such
claim; (d) there is no pending or threatened action, suit, proceeding or
claim by others challenging the validity or scope of any such Intellectual
Property, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (e) there is no pending or threatened
action, suit, proceeding or claim by others that the Company infringes or
otherwise violates any patent, trademark, copyright, trade secret or other
proprietary right of others in any Intellectual Property, and the Company
is unaware of any other fact which would form a reasonable basis for any
such claim; and (f) there is no prior art of which the Company is aware
that may render any U.S. patent held by the Company invalid or any U.S.
patent application held by the Company unpatentable which has not been
disclosed to the U.S. Patent and Trademark Office, in the case of any of
(a) through (f) above, which would have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company, the Subsidiaries and SMP, taken as a whole,
whether or not arising from the ordinary course of business. The
Underwriters acknowledge that SMP, being 51% owned by an affiliate of Agere
Systems, Inc., would enjoy the benefit of the Intellectual Property
portfolio of Agere Systems, Inc.
(hh) 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 Final Prospectus (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
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course of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(ii) 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 Underwriting Agreement.
(jj) Each of the Company, the Subsidiaries and, to the knowledge of
the Company, SMP, maintains 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.
(kk) The Company, the Subsidiaries and, to the knowledge of the
Company, SMP, 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, the
Subsidiaries and SMP, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in the
Final Prospectus (exclusive of any supplement thereto).
(ll) 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
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unpaid liability to the Pension Benefit Guaranty Corporation (other than
for the payment of premiums in the ordinary course) or to any such plan
under Title IV of ERISA, except such as would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and
the Subsidiaries, taken as a whole.
(mm) The Subsidiaries are the only significant subsidiaries of the
Company as defined by Rule 1.02 of Regulation S-X.
(nn) In preparing the guidance announced by the Company on February
27, 2001 regarding the loss for the first quarter of 2001 that the Company
expects to record, the Company considered all of the relevant economic and
business factors. Any assumptions underlying such guidance were reasonable
under the circumstances and were made by the Company in good faith. The
Company has no reason to believe that any such assumptions were materially
incorrect, as of February 27, 2001 or as of the date of this
representation, or that the Company will record a loss in excess of US$0.24
per American Depositary Share for the first quarter of 2001. (This
representation and warranty shall be made by the Company only on the date
of this Underwriting Agreement, on the Closing Date and on any settlement
date.)
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 Underwriters in connection
with this Underwriting Agreement shall be deemed to be a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this Underwriting Agreement,
the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a
purchase price of 100% of the principal amount thereof, the principal
amount of the Underwritten Securities set forth opposite such Underwriter's
name in Schedule I to this Underwriting Agreement.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this Underwriting Agreement,
the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to US$75,000,000 additional
principal amount of the Option Securities at the same purchase price as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised to cover overallotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised from the
Company in whole or in part at any time (but not more than once) on or
before the 30th day after the date of the Final Prospectus upon written or
telegraphic notice by the Representatives to the Company setting forth the
principal amount of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The number
of Option Securities to be purchased by each Underwriter shall be the same
percentage of the total
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number of shares of the Option Securities to be purchased by the several
Underwriters as such Underwriter is purchasing of the 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 Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 9:00 AM, New York City time, on April 2, 2001
or such later date not later than five Business Days after the foregoing date as
the Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
9 hereof (such date and time of delivery and payment for the Securities being
herein called in this Underwriting Agreement, the "Closing Date"). Delivery of
the Securities shall be made to the Representatives for the respective accounts
of the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same day funds to an account specified by
the Company. Delivery of the Underwritten Securities and the Option Securities
shall be made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct at least one Business Day in advance of
the Closing Date.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Company will deliver (at its
expense) to the Representatives, c/o Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, North Tower, World Financial Center, New York, New York
10281-1209, on the date specified by the Representatives (which shall be within
three Business Days after exercise of said option) for the account of the
several Underwriters through the Representatives, the Option Securities in such
names and denominations as the Representatives shall have requested against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company, by wire transfer of U.S.
dollars and payable in same day funds to an account specified by the Company. If
settlement for the Option Securities occurs after the Closing Date, the Company
will deliver to the Representatives on the settlement date for the Option
Securities, and the obligation of the Underwriters to purchase the 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
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the 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 (including the
Final Prospectus or any Preliminary Prospectus) to the Basic Prospectus or
any Rule 462(b) Registration Statement unless the Company has furnished you
a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, if the
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Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Final Prospectus is otherwise required under Rule
424(b), the Company will cause the Final 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 Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Final 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 shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the 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
the ADR Registration Statement, or any Rule 462(b) Registration Statement,
or for any supplement to the Final 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 Final 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 Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of any such event; (2) prepare and file with the
Commission, subject to the second sentence of paragraph (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 Final 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 Representatives an earnings
statement or statements of the Company and the Subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement and the ADR Registration Statement (including exhibits thereto)
and to each other 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 Underwriter or dealer may be required by the
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Act, as many copies of each Preliminary Prospectus and Final Prospectus and
any supplement thereto as the 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
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the 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 Agreement, the Company will
not, without the prior written consent of Xxxxxxx Xxxxx (Singapore) Pte.
Ltd., 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 debt securities issued or guaranteed by the Company (other than
the Securities), 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 Agreement, provided, however,
that the Company may (i) issue and sell Ordinary Shares pursuant to any
employee stock option or purchase plan or stock ownership plan, and may
file a Form S-8 with respect thereto and (ii) keep on file and effective
with the Commission the Registration Statement.
(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 Securities.
(h) The Company will use its best efforts to cause, as soon as
possible on or after the Closing Date, the Securities to be listed on the
Luxembourg Stock Exchange.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained in this
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 made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations under this Underwriting
Agreement and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement
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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 Final
Prospectus, or any supplement thereto, is required pursuant to Rule 424(b),
the Final Prospectus, and any such supplement, will be filed in the manner
and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement or the ADR
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx & Xxxxxxxx,
Singapore counsel for the Company, to have furnished to the Representatives
their opinion, dated the Closing Date and addressed to the Representatives
substantially in the form set forth in Appendix A.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of the federal laws of the United States and the
laws of the State of New York, to the extent they deem proper and specified
in such opinion, upon the opinion of Xxxxxx & Xxxxxxx and (B) as to matters
of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Company shall have furnished to the Representatives the
opinion of Xxxxxx & Xxxxxxx, United States counsel for the Company, dated
the Closing Date substantially in the form of Appendix B.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the Final
Prospectus in this paragraph (c) include any supplements thereto at the
Closing Date.
(d) The Depositary shall have requested and caused Patterson, Belknap,
Xxxx & Xxxxx, counsel for the Depositary, to have furnished to the
Representatives their opinion dated the Closing Date and addressed to the
Representatives stating in effect that:
(i) the Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and constitutes a legal, valid and binding
instrument enforceable against the Depositary in accordance with its
terms, except to the extent that enforcement thereof may be limited by
(a) bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (b) general principles of equity
(regardless of whether enforcement is considered in a proceeding at
law or in equity); the statements in the Final Prospectus under the
heading "Description of American Depositary Shares", insofar as such
statements purport to describe the Depositary
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and summarize certain provisions of the Deposit Agreement, the ADSs
and the ADRs are fair and accurate;
(ii) the Depositary has full power and authority and legal right
to execute and deliver the Deposit Agreement and to perform its
obligations thereunder;
(iii) upon due issuance and delivery by the Depositary of the
ADRs evidencing the ADSs against the deposit of the Ordinary Shares in
accordance with the terms of the Deposit Agreement upon conversion of
the Securities, such ADRs will be validly issued and will entitle the
person in whose name each ADR is registered to the rights specified
therein and in the Deposit Agreement; and
(iv) the ADR Registration Statement has become effective under
the Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the ADR Registration Statement has
been issued, no proceedings for that purpose have been instituted or
threatened, and the ADR Registration Statement, and each amendment
comply as to form in all material respects with the applicable
requirements of the Act and the rules thereunder.
(e) 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
Final Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Deputy 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 Final Prospectus, any supplements to the Final
Prospectus and the Underwriting Agreement and that:
(i) the representations and warranties of the Company in the
Underwriting Agreement 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 or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse change in the condition (financial or
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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 Final Prospectus (exclusive of any
supplement thereto).
(g) The Company shall have requested and caused KPMG to have furnished
to the Representatives, at the Execution Time and at the Closing Date,
letters dated respectively as of the Execution Time and as of the Closing
Date, in form and substance satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable rules and regulations adopted by
the Commission thereunder and stating in effect that:
(i) in their opinion the audited consolidated financial
statements included or incorporated by reference in the Registration
Statement and the Final Prospectus and reported on by them comply as
to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related rules and
regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited condensed
consolidated financial statements made available by the Company and
Chartered Semiconductor Manufacturing Inc., if any; their limited
review, in accordance with United States generally accepted auditing
standards under Statement on Auditing Standards No. 71 of the latest
unaudited consolidated financial statements, if any; carrying out
certain specified procedures (but not an examination in accordance
with U.S. GAAP) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the shareholders, Board of
Directors and Audit Committee of the Company; and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters of the Company and Chartered Semiconductor
Manufacturing Inc. as to transactions and events subsequent to
December 31, 2000, such Company officials advising that no audited
consolidated financial statements are available as of any date or for
any period subsequent to December 31, 2000, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements (if any) included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act and
with the related rules and regulations adopted by the Commission
with respect to financial statements included or incorporated by
reference in periodic reports on Form 6-K under the Exchange Act;
and said unaudited financial statements are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated by reference in the
Registration Statement and the Final Prospectus; and
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(2) with respect to the period subsequent to December 31,
2000, there were any changes, at a specified date not more than
two Business Days prior to the date of the letter, in the share
capital of the Company or any increase in long-term debt
(excluding current installments) as compared with the amounts
shown on the December 31, 2000 audited consolidated balance
sheet, or for the period from January 1, 2001 to no more than two
business days prior to the date of this letter, there was any
decrease, as compared with the corresponding period in the
preceding year, in consolidated net revenue of the Company,
except in all instances for changes, increases or decreases set
forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives.
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature derived from the general
accounting records of the Company and Chartered Semiconductor
Manufacturing Inc. set forth in the Registration Statement and the
Final Prospectus, including the information set forth under the
captions "Summary," "Risk Factors," "Use of Proceeds," "Dividend
Policy," "Capitalization," "Selected Financial Information,"
"Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Business," "Management," "Principal
Shareholders" and "Description of the Convertible Notes," in the Final
Prospectus, the information included in Items 3, 4, 5, 6, 7, 8, 10 and
11 of the Company's annual report for 2000 on Form 20-F, incorporated
by reference in the Registration Statement and the Final Prospectus,
agrees with or is recomputed from the accounting records of the
Company and the Subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (g) include any
supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof), and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (g) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and the Subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Final Prospectus (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) and the Final
Prospectus (exclusive of any supplement thereto).
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(i) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A
hereto for each shareholder of the Company listed in Schedule III
hereto.
(j) The Deposit Agreement shall be in full force and effect, and
shall not have been amended except as approved by the Representatives.
(k) The Ordinary Shares issuable upon conversion at the option of
the holders of the Securities in accordance with the terms of the
Securities and the Indenture shall have been approved in-principle for
listing and quotation on the SGX-ST, and satisfactory evidence of all
such actions shall have been provided to the Representatives.
(l) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Underwriting
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Underwriting Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Underwriting Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will be delivered
at the offices of Cleary, Gottlieb, 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.
(a) In consideration of the agreement by the Underwriters to subscribe
for the Underwritten Securities and the Option Securities (subject to the
option for the Option Securities referred to in the preamble above being
duly exercised in accordance with Section 3 of this Underwriting
Agreement), the Company shall pay to the Underwriters on the Closing Date,
or on the date on which such Option Securities are purchased, as the case
may be, a commission of 2.50 per cent. in respect of the Underwritten
Securities or the Option Securities, as the case may be.
(b) In addition to the commission described in paragraph (a), the
Company may also elect to pay the Underwriters an incentive fee of 0.20 per
cent. of the principal amount of the Underwritten Securities and the Option
Securities, as the case may be, depending on the performance of the
Underwriters. Payment of this incentive fee will be entirely at the
discretion of the Company.
8. Reimbursement of Company's and Underwriters' Expenses.
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(a) Subject to Section 8(b), the Underwriters agree to pay up to
US$2,500,000 (or, in the event the Underwriters purchase any of the Option
Securities, up to an additional US$375,000 pro rata to the principal amount
of the Option Securities purchased) towards the reimbursement of the costs
and expenses of the Company relating to the following matters: (i) the fees
and expenses of the Company's counsel (including local counsel) and
accountants in connection with the preparation and filing of the
Registration Statement and the issue of the Securities, (ii) the
preparation, printing or reproduction and filing with the Commission of the
Registration Statement (including financial statements and exhibits
thereto), each Preliminary Prospectus, each Final 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) 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; (iv) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities;
(v) the registration of the Securities under the Registration Statement
under the Act; (vi) the registration of the Securities under the Exchange
Act and the listing of the Securities on the Luxembourg Stock Exchange;
(vii) any filings required to be made with the National Association of
Securities Dealers, Inc. (the "NASD") or the SGX-ST; (viii) the fees and
expenses of the Trustee; and (ix) all other costs and expenses incurred by
the Company in connection with the Registration Statement and the proposed
purchase and sale of the Securities.
(b) If the sale of the Securities provided for under the Underwriting
Agreement is not consummated, the Underwriters shall not reimburse the
Company for any expenses as provided in Section 8(a). Instead, each of the
Company and the Underwriters shall bear their own expenses in connection
with the proposed purchase and sale of the Securities. For the avoidance of
doubt, in this event, the Company shall be responsible for all of the
expenses listed in Section 8(a), other than expenses for travel,
accommodation and communications for representatives of the Underwriters in
connection with the road show for the offering of the Securities, which
such expenses shall be borne by the Underwriters.
9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning
of either the Act or the Exchange Act (i) against any and all losses,
claims, damages, expenses or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal, state or any other applicable statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages, expenses
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 the
Final Prospectus, 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
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make the statements therein not misleading, (ii) against any and all loss,
liability, claim, damage and expense whatsoever, as incurred, to the extent
of the aggregate amount paid in settlement of any (1) litigation, (2)
investigation or proceeding by any governmental agency or body, commenced
or threatened, or (3) claim whatsoever, in each case based upon any untrue
statement or omission, or any alleged untrue statement or omission
described in clause (i) above; provided that, in each case, and subject to
the last sentence of paragraph (d) below, any such settlement is effected
with the prior written consent of the Company; and (iii) against any and
all expense whatsoever, as incurred (including the fees and disbursements
of counsel chosen in accordance with paragraph (c) below), reasonably
incurred in accordance with the terms of this Section 9 in investigating,
preparing or defending against any (1) litigation, (2) investigation or
proceeding by any governmental agency or body, commenced or threatened, or
(3) claim whatsoever, in each case based upon any untrue statement or
omission, or any alleged untrue statement or omission described in clause
(i) above, to the extent that any such expense is not paid under (i) or
(ii) above; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage, expense 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 Underwriter through the Representatives
specifically for inclusion therein; 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 Underwriter from whom the person describing
any such loss, claim, damage, expense or liability purchased the
Securities, or any person controlling such Underwriter, to the extent that
any such loss, claim, damage, expense or liability of each Underwriter (or
any person controlling such 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 Final Prospectus to the Representative, (x)
delivery of the Final 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 Final 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
Final Prospectus. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each 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, and each person, if any, who controls the
Company within the meaning of either the Act or Exchange Act, to the same
extent as the foregoing indemnity to each Underwriter, but only with
reference to written information relating to such Underwriter made in the
documents referred to in the foregoing indemnity in reliance furnished upon
and in conformity with such written information furnished to the Company by
or on behalf of such Underwriter through the Representatives specifically
for inclusion therein. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company
acknowledges that (A) the names of the Underwriters contained in any
Preliminary Prospectus or the Final Prospectus and their respective
participation in the sale of the Securities as set forth in the first
paragraph under the
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heading "Underwriting" in any Preliminary Prospectus or the Final
Prospectus, (B) the statements set forth in the second sentence of the last
paragraph on the front cover page of any Preliminary Prospectus or the
Final Prospectus regarding delivery of the Securities and (C) the
statements set forth in the fourth, fifth, fifteenth and sixteenth
paragraphs and the second sentence of the sixth paragraph and the third
sentence of the twelfth paragraph under the heading "Underwriting" in any
Preliminary Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Prospectus or the Final
Prospectus.
(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
shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. 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 (Singapore) Pte. Ltd. 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
Underwriting Agreement (whether or not the indemnified parties are actual
or potential parties to such claim or action) unless such settlement,
compromise or consent (i) includes an unconditional release of each
indemnified party from liability
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arising out of such claim, action, suit or proceeding and (ii) does not
include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party. The indemnifying
party shall not be liable for any settlement of any proceeding effected
without its prior written consent; provided, however, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 9(a) and 9(b) hereto effected without its written
consent if (i) such settlement is entered into more than 60 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such
settlement at least 45 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
(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 and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages,
expenses and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which the Company and one or more of the Underwriters may be
subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by the Underwriters from the offering
of the Securities; provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating to
the offering of the Securities) be responsible for any amount in excess of
the underwriting discount or commission (after deducting expenses,
including the amount reimbursed to the Company pursuant to Section 8(a))
applicable to the Securities purchased by such Underwriter hereunder. If
the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and of the
Underwriters in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total
net proceeds from the offering (before deducting expenses) received by it,
and benefits received by the Underwriters shall be deemed to be equal to
the total underwriting discounts and commissions (after deducting
expenses), in each case as set forth on the cover page of the Final
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information provided by the Company or by the Underwriters, the intent of
the parties and their relative knowledge access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company and the 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. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above
in this paragraph (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any (1) litigation, (2) investigation or
proceeding by any governmental agency or body, commenced or threatened, (3)
claim whatsoever, in each case based upon any untrue or
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26
alleged untrue statement or omission or alleged omission described in
clause (i) of paragraph (a) above. Notwithstanding the provisions of this
paragraph (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission. 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 Underwriter within
the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to
contribution as such 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 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).
10. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters under this Underwriting Agreement and such failure
to purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
principal amount of Securities set forth opposite their names in Schedule I
hereto bears to the aggregate principal amount of Securities set forth opposite
the names of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate principal amount of Securities set forth in Schedule
I hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 10, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default under this Underwriting Agreement.
11. Termination.
(a) The Representative(s) may terminate this Underwriting Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if
there has been, since the time of execution of this Underwriting Agreement
or since the respective dates as of which information is given in the Final
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in
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the ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States or Singapore,
any outbreak of hostilities or escalation thereof involving the United
States or Singapore, or (iii) any declaration by the United States or
Singapore of a national emergency or war, or (iv) other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions of the United
States or Singapore, in each case the effect of which is such as to make
it, in the reasonable judgment of the Representatives, impracticable to
market the Securities or to enforce contracts for the sale of the
Securities, or (v) if trading in the Company's ADSs has been suspended by
the Commission or the Nasdaq National Market, Inc., trading in the
Company's Ordinary Shares has been suspended by the SGX-ST, or if trading
generally on the New York Stock Exchange or the SGX-ST or in the Nasdaq
National Market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices
have been required, by any of said exchanges or by such system or by order
of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (vi) if a banking moratorium has been
declared by either U.S. Federal, New York State or Singapore authorities.
(b) If this Underwriting Agreement is terminated pursuant to this
Section 11, such termination shall be without liability of any party to any
other party except as provided in Section 8 hereof, and provided further
that Sections 1, 9 and 12 shall survive such termination and remain in full
force and effect.
12. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the 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 Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 9 hereof, and will
survive delivery of and payment for the Securities.
13. Notices. All communications under this Underwriting Agreement will be
in writing and effective only on receipt, and, if sent to the Representatives,
will be mailed, delivered or telefaxed to the Representatives at 0 Xxxxxxx
Xxxxxx, #00-00 Xxxxxxxx Xxxxx, Xxxxxxxxx 000000, attention of Legal Department
(fax no.: (00) 000-0000); or, if sent to the Company, will be mailed, delivered
or telefaxed to the Legal Department (fax no.: (00) 000-0000) and confirmed to
it at 00 Xxxxxxxxx Xxxxxxxxxx Xxxx X, Xxxxxx 0, Xxxxxxxxx 000000, Attention:
Legal Department.
14. Successors. This 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 Underwriting Agreement.
15. Jurisdiction. (a) The Company agrees that any suit, action or
proceeding against the Company brought by any Underwriter, by the directors,
officers, employees and agents of any Underwriter or by any person who controls
any Underwriter, arising out of or based upon this 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
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venue of any such proceeding, and irrevocably accepts and submits to the
non-exclusive jurisdiction of such courts in any suit, action or proceeding. The
Company has appointed Chartered Semiconductor Manufacturing, Inc., at 0000
XxXxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 as its authorized agent (the
"Company's Authorized Agent"), upon whom process may be served in any suit,
action or proceeding arising out of or based upon this Underwriting Agreement or
the transactions contemplated herein which may be instituted in any New York
Court by any Underwriter, by the directors, officers, employees and agents of
any Underwriter or by any person who controls any Underwriter and expressly
accepts the non-exclusive jurisdiction of any such court in respect of any such
suit, action or proceeding. The Company consents to process being served in any
action or proceeding by mailing a copy thereof by registered or certified mail
to the Company's Authorized Agent. The Company hereby represents and warrants
that the Company's 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 Company's Authorized Agent shall be deemed, in every
respect, effective service of process upon the Company. Notwithstanding the
foregoing, any action arising out of or based upon this Underwriting Agreement
may be instituted by any Underwriter, by the directors, officers, employees and
agents of any Underwriter or by any person who controls any Underwriter, in any
other court of competent jurisdiction, including those in Singapore.
(b) Each of the Underwriters agrees that any suit, action or
proceeding against the Underwriters brought by the Company, its directors,
its officers who sign the Registration Statement or any person who controls
the Company, arising out of or based upon this Underwriting Agreement or
the transactions contemplated hereby may be instituted in any New York
Court; and waives any objection which it may now or hereafter have to the
laying of venue of any such proceeding, and irrevocably accepts and submits
to the non-exclusive jurisdiction of such courts in any suit, action or
proceeding. The Underwriters have appointed Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, at World Financial Center, North Tower, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its authorized agent (the
"Underwriters' Authorized Agent"), upon whom process may be served in any
suit, action or proceeding arising out of or based upon this Underwriting
Agreement or the transactions contemplated herein which may be instituted
in any New York Court by the Company, its directors, its officers who sign
the Registration Statement or any person who controls the Company and
expressly accepts the non-exclusive jurisdiction of any such court in
respect of any such suit, action or proceeding. The Underwriters consent to
process being served in any action or proceeding by mailing a copy thereof
by registered or certified mail to the Underwriters' Authorized Agent. The
Underwriters hereby represent and warrant that the Underwriters' Authorized
Agent has accepted such appointment and has agreed to act as said agent for
service of process, and the Underwriters agree 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 Underwriters' Authorized Agent shall be deemed, in every
respect, effective service of process upon the Underwriters.
Notwithstanding the foregoing, any action arising out of or based upon this
Underwriting Agreement may be instituted by the Company, its directors, its
officers who sign the Registration Statement or any person who controls the
Company, in any other court of competent jurisdiction, including those in
Singapore.
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(c) The provisions of this Section 15 shall survive any termination of
the Underwriting Agreement, in whole or in part.
16. Applicable Law. This 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 Underwriting Agreement to U.S.
dollars (the "relevant currency") is of the essence. To the fullest extent
permitted by law, the obligations of the Company and the Underwriters in respect
of any amount due under this 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 Underwriters, as the case may be, 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 Underwriters, as the case may be. Any
obligation of the Company or the Underwriters, as the case may be, not
discharged by such payment will, to the fullest extent permitted by applicable
law, be due as a separate and independent obligation and, until discharged as
provided herein, will continue in full force and effect.
18. Waiver of Immunity. To the extent that the Company has or hereafter
may acquire any immunity (sovereign or otherwise) from any legal action, suit or
proceeding, from jurisdiction of any court or from set-off or any legal process
(whether service or notice, attachment in aid or otherwise) with respect to
itself or any of its property, the Company hereby irrevocably waives and agrees
not to plead or claim such immunity in respect of its obligations under this
Agreement.
19. Counterparts. This Underwriting Agreement may be signed in one or more
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same agreement.
20. Headings. The section headings used in this Underwriting Agreement are
for convenience only and shall not affect the construction hereof.
21. Definitions. The terms which follow, when used in this 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.
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"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.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date.
"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, 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 Underwriting
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"New York Courts" shall mean the U.S. Federal or State courts located
in the State of New York, County of New York.
"Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
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"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.
"Subsidiary" shall mean each of Chartered Semiconductor Manufacturing
Inc. and Chartered Silicon Partners Pte Ltd.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"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.
"Underwriting Agreement" shall mean this agreement relating to the
sale of the Securities by the Company to the Underwriters.
31
32
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 Underwriters.
Very truly yours,
Chartered Semiconductor Manufacturing
Ltd
By: /s/ CHIA SONG HWEE
----------------------------------
Name: Chia Song Hwee
Title: Senior Vice President,
Chief Financial Officer and
Chief Administrative Officer
32
33
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx (Singapore) Pte. Ltd.
By: /S/ XXXXXXX XXXXXXX
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
For itself and other several
Representatives and Underwriters
Named in Schedule I
to the foregoing Agreement.
33
34
SCHEDULE I
PRINCIPAL AMOUNT OF
UNDERWRITER UNDERWRITTEN NOTES
----------- -------------------
Xxxxxxx Xxxxx (Singapore) Pte. Ltd. US$500,000,000
--------------
Total US$500,000,000
35
SCHEDULE II
List of Signatories to Letter Attached as Exhibit A
1. Singapore Technologies Pte Ltd
2. Singapore Technologies Semiconductors Pte Ltd
36
EXHIBIT A
Chartered Semiconductor Manufacturing Ltd
Public Offering of Senior Convertible Notes due 2006
, 2001
---------- -----
Xxxxxxx Xxxxx (Singapore) Pte. Ltd.
As Representatives of the several Underwriters
0 Xxxxxxx Xxxxxx
#00-00 Xxxxxxxx Xxxxx
Xxxxxxxxx 000000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement between Chartered Semiconductor Manufacturing Ltd, a
corporation organized under the laws of Singapore (the "Company") and you as
representatives of the group of Underwriters named therein, relating to an
underwritten public offering of Senior Convertible Notes due 2006 (the "Notes"),
convertible into ordinary shares (the "Ordinary Shares") or American Depositary
Shares (the "ADSs") of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior consent of
Xxxxxxx Xxxxx (Singapore) Pte. Ltd., offer (except for deemed offers of the
undersigned's securities pursuant to the Registration Statement (as defined in
the Underwriting Agreement)), 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 (except for deemed offers to the undersigned's securities pursuant
to the Registration Statement), any Ordinary Shares or ADSs or any securities
convertible into, or exercisable or exchangeable for, Ordinary Shares or ADSs,
for a period of 45 days following the date of the Underwriting Agreement, other
than Ordinary Shares or ADSs disposed of as bona fide gifts approved by Xxxxxxx
Xxxxx (Singapore) Pte. Ltd.
If for any reason the Underwriting Agreement shall be terminated prior to
the Closing Date (as defined in the Underwriting Agreement), the agreement set
forth above shall likewise be terminated.
Yours very truly,
-----------------------------------
[Signature]
[Name and address]
37
APPENDIX A
FORM OF A&G OPINION
[Subject to A&G's standard preamble and qualifications]
1. The Company is a company duly incorporated and is validly existing
under the laws of the Republic of Singapore and has the corporate power and
capacity to own or lease its property and to conduct its business as described
in the Final Prospectus;
2. CSP is a company duly incorporated and is validly existing under
the laws of the Republic of Singapore and has the corporate power and capacity
to own or lease its property and to conduct its business as described in the
Final Prospectus;
3. SMP is a company duly incorporated and is validly existing under
the laws of the Republic of Singapore and has the corporate power and capacity
to own or lease its property and to conduct its business as described in the
Final Prospectus;
4. (a) The Company has taken all necessary corporate action required
under the laws of the Republic of Singapore to authorise the entry into,
execution and delivery of, the Underwriting Agreement; and
(b) The Company has the corporate power and has taken all necessary
corporate action required under the laws of the Republic of Singapore to
authorise the entry into, execution and delivery of the Indenture and,
assuming due authorisation, execution and delivery thereof by the Trustee
(as defined in the Indenture), the Indenture constitutes a valid and
legally binding agreement of the Company, enforceable in accordance with
its terms;
5. The authorized share capital of the Company as at 28th February,
2001 conforms as to legal matters to the description thereof set out on page -
of the Final Prospectus;
6. (a) The 1,380,266,279 ordinary shares of par value of S$0.26 each
in the capital of the Company issued and outstanding as of 28th February,
2001 have been duly authorized and are validly issued, fully paid and
non-assessable and are not issued in violation of any pre-emptive or
similar rights under (1) the laws of the Republic of Singapore or (2) the
Memorandum and Articles of Association of the Company or any other
constitutive document of the Company or any amendment thereto. For the
purposes of this opinion we have assumed that the term "non-assessable" in
relation to ordinary shares of par value of S$0.26 each in the capital of
the Company (the "Ordinary Shares") means under Singapore law that holders
of such Ordinary Shares, having fully paid up all amounts due on such
Ordinary Shares as to nominal amount and premium thereon, are under no
further personal liability to contribute to the assets or liabilities of
the Company in their capacities purely as holders of such Ordinary Shares;
(b) No holders of any of the 1,380,266,279 Ordinary Shares issued
and outstanding prior to the issuance of the Notes are entitled to any
pre-emptive or other rights to subscribe to any of the Notes except for
such rights as have been waived; and
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38
(c) Except as described in the Final Prospectus under the caption
"Management -- Issuances of Share Options", and as far as we are aware,
there are no outstanding securities issued by the Company convertible into
or exchangeable for, or warrants, rights or options to purchase from the
Company, or obligations of the Company to issue, Ordinary Shares;
7. The Notes have been duly authorized by the Company and, when
authenticated, issued and delivered in the manner provided for in the Indenture
and delivered against payment of the purchase price therefor as provided in the
Underwriting Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, and the
issuance of such Notes will not be subject to any pre-emptive or similar rights
under (a) the laws of the Republic of Singapore or (b) the Memorandum and
Articles of Association of the Company or any other constitutive document of the
Company or any amendment thereto; and, except as set out in paragraph 7 above,
there are no restrictions on the transfer of the Notes under the laws of the
Republic of Singapore;
8. The Ordinary Shares issuable upon conversion of the Notes have been
duly authorized and such shares, when issued upon such conversion, will be
validly issued and will be fully paid and non-assessable, and the issuance of
such Ordinary Shares upon such conversion will not be subject to any pre-emptive
or similar rights under (a) the laws of the Republic of Singapore or (b) the
Memorandum and Articles of Association of the Company or any other constitutive
document of the Company or any amendment thereto;
9. (a) All of the 720,000,000 issued ordinary shares of S$1.00 each in
the capital of CSP have been duly authorised and are validly issued and
fully paid;
(b) The Company is the registered holder of 367,200,000 issued
ordinary shares of S$1.00 each in the capital of CSP; and
(c) As far as we are aware, the 367,200,000 issued ordinary shares
of S$1.00 each in the capital of CSP are beneficially owned by the Company
free and clear of any perfected security interests, liens or encumbrances;
10. Under the current laws and regulations of the Republic of
Singapore, all dividends declared and payable in respect of the Ordinary Shares
may be paid by the Company to the holder thereof in Singapore dollars that may
be converted into foreign currency and, when so converted, freely transferred
out of Singapore, without the necessity of obtaining any consents, approvals,
authorizations, orders or clearances from or registering with any Singapore
governmental agency or body or any stock exchange authority; and except as set
forth in the Final Prospectus under the caption "Taxation - Singapore Taxation",
all dividends paid to holders of Ordinary Shares who are non-residents of
Singapore will not be subject to Singapore income, withholding or other taxes
under the laws of Singapore;
11. As at the date hereof:-
(a) We are not representing the Company or any of its subsidiaries
in any legal or governmental proceedings, pending or threatened, to which
the Company or any subsidiary is a party or to which any of the properties
of the Company or any
A-2
39
subsidiary is subject which could reasonably be expected to have a material
adverse effect on the performance of the Underwriting Agreement or the
consummation of any of the transactions contemplated under the Underwriting
Agreement or could reasonably be expected to have a material adverse effect
on the condition (financial or otherwise), prospects, earnings, business or
properties of the Company or any subsidiary, taken as a whole; and
(b) We are not aware of the existence of any legal or governmental
proceedings in the Republic of Singapore to which the Company or any
subsidiary is a party or to which any of the properties of the Company or
any subsidiary is subject;
12. No consent, approval, authorisation or order of or qualification
with any governmental body or agency or stock exchange authority in the Republic
of Singapore was or is required for the consummation of the Transaction
Agreements and the issue and delivery of the Notes, except as may be required
pursuant to the Companies Act, Chapter 50 of Singapore or the AIP Letter, which
has been obtained, and the submission of the Return on Debt Securities in
respect of the Notes to the Monetary Authority of Singapore and the Inland
Revenue Authority of Singapore by the Underwriter;
13. The consummation of any of the transactions contemplated in the
Transaction Agreements and the issue and delivery of the Notes (a) have been, in
the case of transactions to which the Company is a party, duly authorised by the
Company and (b) do not contravene (1) any provision of the laws of the Republic
of Singapore, (2) the Memorandum and Articles of Association of the Company or
any other constitutive document of the Company or any amendment thereto, (3)
assuming that the issuance of the Ordinary Shares issuable upon the conversion
of the Notes in accordance with the terms thereof will not result in Singapore
Technologies Pte Ltd holding, either directly or indirectly, less than 51 per
cent. of the issued share capital of the Company, any agreement or instrument
binding on the Company, CSP or SMP and governed by Singapore law and described
in Exhibit [A] hereto or (4) as far as we are aware, any judgment, order or
decree of any governmental body, agency or court of the Republic of Singapore
having jurisdiction over the Company or any of its assets;
14. It is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of the Transactions Agreements, that
they be filed or recorded with any governmental or other regulatory authorities
in Singapore;
15. No taxes, imposts or duties of any nature (including, without
limitation, stamp or other issuance or transfer taxes or duties and capital
gains, income, withholding or other taxes) are payable by or on behalf of the
Underwriter or the Company to the Republic of Singapore or any political
subdivision or taxing authority thereof or therein in connection with (a) the
execution and delivery of the Underwriting Agreement, (b) the issuance of the
Notes by the Company in connection with the Offering; (c) the sale and delivery
of the Notes to the Underwriter in the manner contemplated in the Underwriting
Agreement; or (d) except as disclosed in the Final Prospectus under the caption
"Taxation -- Singapore Taxation", the resale and delivery of the Notes by the
Underwriter in the manner contemplated in the Final Prospectus; except as
disclosed in the Final Prospectus under the caption "Taxation -- Singapore
Taxation", no taxes (including, without limitation, stamp, transfer or other
taxes) will be imposed
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40
by Singapore or any other political subdivision or taxing authority thereof or
therein upon conversion of the Securities in accordance with the terms thereof
and the terms of the Indenture.
16. The boxed sections, as set out in Appendix [A] to this opinion, of
the statements in the Final Prospectus under the captions "Dividend Policy",
"Exchange Rates", "Taxation -- Singapore Taxation" and "Description of Ordinary
Shares" insofar as such statements constitute summaries of the Singapore legal
matters referred to therein, fairly present the information called for with
respect to such legal matters and fairly summarise the matters referred to
therein;
17. The choice of New York law as the governing law of the Transaction
Agreements and the Notes is a valid choice of law and will be recognized and
given effect to by the Singapore courts;
18. The submission by the Company to the jurisdiction of the New York
courts contained in the Transaction Agreements and the Notes and the appointment
by the Company of Chartered Semiconductor Manufacturing, Inc. as its agent for
service of process in connection therewith are, in each case, valid and binding
on the Company under the laws of the Republic of Singapore and irrevocable; and
19. A final and conclusive judgment on the merits properly obtained
against the Company in any competent court of a state in, or a federal court of,
the United States of America for a fixed sum of money in respect of any legal
suit or proceedings arising out of or relating to the Transaction Agreements and
the Notes and which could be enforced by execution against the Company in the
jurisdiction of the relevant court and has not been stayed or satisfied in whole
may be sued on in the Republic of Singapore as a debt due from the Company, if:-
(a) the relevant court had jurisdiction over the Company, in that
the Company, was, at the time proceedings were instituted, resident in the
jurisdiction in which proceedings has been commenced or had submitted to
the jurisdiction of the relevant court;
(b) that judgment was not obtained by fraud;
(c) the enforcement of that judgment would not be contrary to the
public policy of the Republic of Singapore;
(d) that judgment had not been obtained in contravention of the
principles of natural justice; and
(e) the judgment of the relevant court did not include the payment
of taxes, a fine or penalty.
This opinion relates only to the laws of general application of the
Republic of Singapore as at the date hereof and as currently applied by the
Singapore courts, and is given on the basis that it will be governed by and
construed in accordance with the laws of the Republic of Singapore. We have made
no investigation of, and do not express or imply any views on, the laws of any
country other than the Republic of Singapore. In respect of the Transaction
A-4
41
Agreements, the Notes, the Base Prospectus, the Final Prospectus and the
Registration Statement, we have assumed due compliance with all matters
concerning United States Federal and New York laws and the laws of all other
relevant jurisdictions other than the Republic of Singapore. With respect to all
matters of United States Federal and New York laws we have relied upon, and our
opinion is subject to the qualifications, assumptions and exceptions set forth
in, the opinion of Xxxxxx & Xxxxxxx, United States counsel for the Company,
delivered pursuant to Section - of the Underwriting Agreement. As to matters of
fact material to this opinion, we have relied on the statements of responsible
officers of the Company.
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APPENDIX B
FORM OF L&W OPINION
[Subject to L&W standard preamble and qualifications]
1. Chartered Semiconductor Manufacturing Inc. ("Chartered Inc.") has
been duly incorporated and is validly existing and in good standing under the
laws of the State of Delaware.
2. The Registration Statement and the ADS Registration Statements have
become effective under the Act; to the best of our knowledge, no stop order
suspending the effectiveness of the Registration Statement or the ADS
Registration Statements has been issued under the Act and no proceedings
therefor have been initiated or threatened; and any required filing of the Final
Prospectus pursuant to Rule 424(b) under the Act has been made in accordance
with Rule 424(b) and Rule 430A under the Act.
3. The Registration Statement and the Final Prospectus comply as to
form in all material respects with the requirements for registration statements
on Form F-3 under the Act and the rules and regulations of the Commission
thereunder and the ADS Registration Statements complies as to form in all
material respects with the requirements for registration statements on Form F-6
under the Act and the rules and regulations of the Commission thereunder; it
being understood, however, that we express no opinion with respect to the
financial statements, schedules or other financial data included or incorporated
by reference in, or omitted from, the Registration Statement, the ADS
Registration Statements or the Final Prospectus or with respect to the Statement
of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the
Trustee (the "Form T-1"). In passing upon the compliance as to form of the
Registration Statement, the ADS Registration Statements and the Final
Prospectus, we have assumed that the statements made and incorporated by
reference therein are correct and complete.
4. The Company is not and, after giving effect to the sale of the
Notes and the application of the net proceeds therefrom as described in the
Final Prospectus, will not be, an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended.
5. Assuming due authorization, execution and delivery of the
Underwriting Agreement by the Company under Singapore law, the Underwriting
Agreement has been duly executed and delivered by the Company under the laws of
the State of New York.
6. Assuming due authorization, execution and delivery of the Deposit
Agreement by the parties thereto (other than due execution and delivery by the
Company under the laws of the State of New York), the Deposit Agreement is a
legally valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms.
7. Assuming due authorization, execution and delivery of the Indenture
by the parties thereto (other than due execution and delivery by the Company
under the laws of the State of New York), the Indenture has been duly executed
and delivered by the Company under the laws of the State of New York and
constitutes a valid and binding agreement of the
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43
Company, enforceable against the Company in accordance with its terms. The
Indenture has been duly qualified under the Trust Indenture Act.
8. Assuming due authorization, execution and delivery of the Notes by
the parties thereto (other than due execution and delivery by the Company under
the laws of the State of New York), the Notes have been duly executed and
delivered under the laws of the State of New York and, when authenticated,
issued and delivered in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor as provided in this Underwriting
Agreement, will constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms and will be
entitled to the benefits of the Indenture.
9. No consent, approval, authorization or order of, or filing with,
any United States federal or New York court or governmental agency or body is
required for the consummation of the issuance and sale of the Notes by the
Company pursuant to the Underwriting Agreement and the Indenture, except such as
have been obtained under the Act and such as may be required under state
securities laws in connection with the purchase and distribution of such Notes
by the Underwriter.
10. The issuance and sale of the Notes by the Company pursuant to the
Underwriting Agreement and the Indenture, will not result in (a) the violation
of the Company of any United States federal or New York statute, rule or
regulation known to us to be applicable to the Company (other than United States
federal or state securities laws, which are specifically addressed elsewhere
herein) or (b) the breach of or a default under any of the agreements filed as
exhibits 4.32, [4.33], 4.34, [4.35], 4.36, [4.37] and 4.38 of the Company's
Annual Report on Form 20-F filed with the Commission on March 21, 2001
(collectively, the "Agreements").
11. The statements set forth in the Final Prospectus under the
headings "Description of Debt Securities" and "Description of the Convertible
Notes", insofar as such statements purport to summarize certain provisions of
the Notes and the Indenture, provide a fair summary of such provisions. The
statements set forth in the Final Prospectus under the heading, "Taxation --
United States Federal Taxation," insofar as such statements constitute a summary
of United States legal matters, are accurate in all material respects.
12. Under the laws of the State of New York relating to personal
jurisdiction, (a) the Company has, under the Underwriting Agreement and the
Indenture, validly submitted to the personal jurisdiction of any state or
federal court located in the State of New York, County of New York in any action
arising out of or relating to the Underwriting Agreement and the Indenture,
respectively, and the transactions contemplated therein and its appointment
thereunder of Chartered Inc. (under the Underwriting Agreement) and CT
Corporation System (under the Indenture) as its authorized agent for service of
process is valid, legal and binding and (b) service of process in the manner set
forth in Section 15 of the Underwriting Agreement and Section - of the Indenture
is effective to confer valid personal jurisdiction over the Company.
13. To the best of our knowledge, there are no contracts, documents or
franchises of a character required to be described in the Registration
Statement, the ADS Registration Statement or the Final Prospectus (including the
documents required to be filed
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44
under the Exchange Act, if upon such filing they would be incorporated by
reference therein) or to be filed as exhibits thereto that are not described or
filed as required.
In addition, we have participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company, and your representatives, at which the contents of
the Registration Statement, the ADS Registration Statements and the Final
Prospectus and related matters were discussed and, although we are not passing
upon, and do not assume any responsibility for (other than as set forth in
paragraph 11), the accuracy, completeness or fairness of the statements
contained or incorporated by reference in the Registration Statement, the ADS
Registration Statements and the Final Prospectus and have not made any
independent check or verification thereof, during the course of such
participation, no facts came to our attention that caused us to believe that the
Registration Statement or the ADS Registration Statements at the time each
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Final Prospectus (including the
documents incorporated by reference), as of its date or as of the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; it being
understood that we express no belief with respect to the financial statements,
schedules and other financial data included or incorporated by reference in, or
omitted from, the Registration Statement, the ADS Registration Statements or the
Final Prospectus or with respect to the Form T-1.
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