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Exhibit 1.2
ST Assembly Test Services Ltd
51,000,000 Ordinary Shares */
(S$0.25 par value)
directly or in the form of American Depositary Shares
Each American Depositary Share representing
the right to receive ten Ordinary Shares
International Underwriting Agreement
New York, New York
January [27], 2000
Salomon Brothers International Limited
Credit Suisse First Boston (Singapore) Limited
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
Societe Generale
As International Representatives of the several
International Underwriters,
c/o Salomon Brothers International Limited
Victoria Plaza ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
ST Assembly Test Services Ltd, a company organized under the laws
of Singapore (the "Company"), proposes to sell to the several International
Underwriters named in Schedule I hereto (the "International Underwriters"), for
whom you (the "International Representatives") are acting as representatives,
51,000,000 Ordinary Shares, S$0.25 par value per share (the "Ordinary Shares"),
of the Company directly or in the form of American Depositary Shares (the
"ADSs") (said Ordinary Shares to be issued and sold by the Company being
hereinafter called the "International Underwritten Shares"). The Company also
proposes to grant to the International Underwriters an option to purchase up to
7,650,000 additional Ordinary Shares to cover over-allotments (the
"International Option Shares" and together with the International Underwritten
Shares, the "International Shares").
It is understood that the Company is concurrently entering into
the U.S. Underwriting Agreement as of the date hereof providing for the sale by
the Company of an aggregate of 102,000,000 Ordinary Shares directly or in the
form of ADSs (said Ordinary Shares to be issued and sold by the Company pursuant
to the U.S. Underwriting Agreement being hereinafter called the "U.S.
Underwritten Shares" and providing for the grant to the U.S. Underwriters of an
option to purchase from the Company up to
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* Plus an option to purchase from the Company up to 25,500,000 additional
Ordinary Shares directly or in the form of ADSs to cover over-allotments.
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15,300,000 additional Ordinary Shares to cover over-allotments (the "U.S. Option
Shares" and together with the U.S. Underwritten Shares, the "U.S. Shares").
It is also understood that the Company is concurrently entering
into the Singapore Management and Underwriting Agreement dated as of the date
hereof (hereinafter the "Singapore Underwriting Agreement" and together with the
U.S. Underwriting Agreement and this International Underwriting Agreement, the
"Underwriting Agreements") providing for the sale by the Company of an aggregate
of 17,000,000 Ordinary Shares (said Ordinary Shares to be issued and sold by the
Company pursuant to the Singapore Underwriting Agreement being hereinafter
called the "Singapore Underwritten Shares") and providing for the grant to the
Singapore Underwriters of an option to purchase from the Company up to 2,550,000
additional Ordinary Shares to cover over-allotments (the "Singapore Option
Shares" and together with the "Singapore Underwritten Shares", the "Singapore
Shares"). The U.S. Shares, together with the International Shares and the
Singapore Shares are hereinafter called the "Shares".
You have also advised the Company that the Underwriters may elect
to cause the Company to deposit on their behalf all or any portion of the
Ordinary Shares to be purchased by them under the Underwriting Agreements
pursuant to the Deposit Agreement, dated as of February [8], 2000 (the "Deposit
Agreement"), to be entered into among the Company, Citibank N.A., as depositary
(the "Depositary") and all holders from time to time of the ADSs (as hereinafter
defined). Upon deposit of any Ordinary Shares, the Depositary will issue
American Depositary Shares representing the Shares so deposited. The ADSs will
be evidenced by American Depositary Receipts (the "ADRs"). Each ADS will
represent ten Ordinary Shares and each ADR may represent any number of ADSs.
Unless the context otherwise requires, the terms "Underwritten Securities",
"Option Securities", "U.S. Underwritten Securities", "U.S. Option Securities",
"U.S. Securities", "International Underwritten Securities", "International
Option Securities", "International Securities", "Singapore Underwritten
Securities", "Singapore Option Securities", "Singapore Securities" and
"Securities" shall be deemed to refer, respectively, to Underwritten Shares,
Option Shares, U.S. Underwritten Shares, U.S. Option Shares, U.S. Shares,
International Underwritten Shares, International Option Shares, International
Shares, Singapore Underwritten Shares, Singapore Option Shares, Singapore Shares
and Shares, as well as, in each case, to any ADSs representing such securities
and the ADRs evidencing such ADSs.
It is further understood and agreed that the U.S. Underwriters,
International Underwriters and Singapore Underwriters have entered into an
Agreement Among U.S. Underwriters, International Underwriters and Singapore
Underwriters dated the date hereof (the "Agreement Among U.S. Underwriters,
International Underwriters and Singapore Underwriters"), pursuant to which,
among other things, the International Underwriters and Singapore Underwriters
may purchase from the U.S. Underwriters a portion of the U.S. Securities to be
sold pursuant to the U.S. Underwriting Agreement, the U.S. Underwriters and
Singapore Underwriters may purchase from the International Underwriters a
portion of the International Securities to be sold pursuant to this
International Underwriting Agreement, and the U.S. Underwriters and
International Underwriters may purchase from the Singapore Underwriters a
portion of the Singapore Securities to be sold pursuant to the Singapore
Underwriting Agreement.
The offering of the U.S. Shares, directly or in the form of ADSs,
is referred to herein as the "U.S. Offering"; the offering of the International
Shares, directly or in the form of ADSs, is referred to herein as the
"International Offering"; and the offering of the Singapore Shares (which will
be only in the form of Ordinary Shares) is
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referred to herein as the "Singapore Offering". The U.S. Offering, International
Offering and Singapore Offering are referred to collectively herein as the
"Global Offering".
As part of the Global Offering contemplated by the Underwriting
Agreements, the U.S. Underwriters, the International Underwriters and the
Singapore Underwriters have agreed to reserve up to 7,500,000 Ordinary Shares
out of the Underwritten Shares set forth opposite their names on Schedule I to
this International Underwriting Agreement, the U.S. Underwriting Agreement and
the Singapore Underwriting Agreement, respectively, for sale (directly or in the
form of ADSs) to the Company's directors, officers, employees, employees of the
Company's business associates, officers and employees of the Company's
affiliates and to certain charitible organizations in Singapore (collectively,
"Participants"), as set forth in the Prospectuses under the heading
"Underwriting" (the "Directed Securities Program"). The Securities to be sold by
the Underwriters pursuant to the Directed Securities Program (the "Directed
Securities") will be sold by them pursuant to the Underwriting Agreements at the
initial public offering price. Any Directed Securities not orally confirmed for
purchase by any Participants by the end of the Business Day in Singapore on
which the Underwriting Agreements are executed will be offered to the other
Participants first, and any of such Directed Securities which are not taken up
by such Participants shall then be offered to the public by the Underwriters as
set forth in the Prospectuses.
To the extent there are no additional International Underwriters
listed on Schedule I other than you, the term International Representatives as
used in this International Underwriting Agreement shall mean you, as
International Underwriters, and the terms International Representatives and
International Underwriters shall mean either the singular or plural as the
context requires. The use of the neuter in this International Underwriting
Agreement shall include the feminine and masculine wherever appropriate. Certain
terms used in this International Underwriting Agreement are defined in Section
20 hereof.
1. Representations and Warranties.
(i) The Company represents and warrants to, and agrees with, each
International Underwriter as set forth below in this Section 1.
(a) The Company has prepared and filed with the Commission a
registration statement (file number 33-93661) on Form F-1, including the
related U.S. Preliminary Prospectus, for registration under the Act of
the offering and sale of the Shares. The Company may have filed one or
more amendments thereto, including the related U.S. Preliminary
Prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission either (1) prior to the
Effective Date of such registration statement, a further amendment to
such registration statement (including the form of the final U.S.
Prospectus) or (2) after the Effective Date of such registration
statement, the final U.S. Prospectus in accordance with Rules 430A and
424(b). In the case of clause (2), the Company has included in such
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 such registration statement and
the International Prospectus with respect to the Underlying Shares and
the offering thereof directly or in the form of ADSs. As filed, such
amendment and form of final prospectus, or such final prospectus, shall
contain all Rule 430A Information, together with all other such required
information with respect to the Underlying Shares and the offering
thereof directly or in the form of ADSs, and, except to the extent the
International
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Representatives shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the latest U.S. Preliminary
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein.
It is understood that three forms of prospectuses are to be used
in connection with the offering and sale of the Securities: one form of
prospectus relating to the U.S. Securities, which are to be offered and
sold to United States and Canadian Persons, one form of prospectus
relating to the International Securities, which are to be offered and
sold to persons other than United States and Canadian Persons and one
form of prospectus for circulation to potential subscribers in Singapore
relating to the Singapore Securities, which are to be offered and sold
in an initial public offering in Singapore. The International Prospectus
will be the same as the U.S. Prospectus except that it will have a
different front and back cover page. The Singapore Prospectus will be
the same as the International Prospectus except that it will have a
special wrap with information required by Singapore law. The
International Prospectus and the Singapore Prospectus will not be filed
as part of the Registration Statement.
(b) On the Effective Date, the Registration Statement did or
will, and when the U.S. Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date (as defined in this
International Underwriting Agreement ) and on any date on which Option
Securities are purchased, if such date is not the Closing Date (a
"settlement date"), each U.S. Prospectus (and any supplements thereto)
will comply in all material respects with the applicable requirements of
the Act and the rules thereunder; on the Effective Date and at the
Execution Time, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, each
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date and
any settlement date, each Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement, or the Prospectuses (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the
Registration Statement or the Prospectuses (or any supplement thereto)
as set forth in Section 8(c) hereof.
(c) The Company has filed with the Commission a registration
statement (file number 505544) on Form F-6 for the registration under
the Act of the offering and sale of the ADSs. The Company may have filed
one or more amendments thereto, each of which has previously been
furnished to you. Such ADR Registration Statement at the time of its
effectiveness did or will comply and on the Closing Date, will comply,
in all material respects with the applicable requirements of the Act and
the rules thereunder and at the time of its Effective Date and at the
Execution Time, did not and will not contain any untrue statement
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of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading.
(d) Each of the Company and Singapore Technologies Assembly and
Test Services, Inc., a corporation organized under the laws of the State
of Delaware, (the "Subsidiary") has been duly incorporated and is
validly existing as a corporation under the laws of the jurisdiction in
which it is chartered or organized with full corporate power and
authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectuses.
The Subsidiary is the only subsidiary of the Company.
(e) All the outstanding shares of capital stock of the Subsidiary
have been duly and validly authorized and issued, are fully paid and
nonassessable, and are owned by the Company free and clear of any
perfected security interest or any other security interests, claims,
liens or encumbrances;
(f) The Company's authorized, issued and outstanding equity
capitalization is as set forth in the Prospectuses; the outstanding
Ordinary Shares have been duly and validly authorized and issued and are
fully paid and nonassessable; the Securities being sold under the
Underwriting Agreements by the Company have been duly and validly
authorized, and, when issued and delivered to and paid for by the U.S.
Underwriters pursuant to the U.S. Underwriting Agreement, by the
International Underwriters pursuant to this International Underwriting
Agreement, by the Singapore Underwriters pursuant to the Singapore
Underwriting Agreement will be validly issued, fully paid and
nonassessable; the certificates for the Securities are in valid and
sufficient 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; and, except as set forth in the
Prospectuses, the Company has not issued any options, warrants or other
rights to purchase, or entered into any agreements or other obligations
to issue, or granted any rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership
interests in the Company.
(g) The Securities are freely transferable by the Company to or
for the account of the several Underwriters and their designees and the
initial purchasers thereof, and except as set forth in the Prospectuses,
there are no restrictions on subsequent transfers of the Securities
under the laws of Singapore and of the United States.
(h) The capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectuses. The
capital adjustment as a result of termination and conversion of certain
of the options granted under the Employees' Share Ownership Scheme was
approved by the Company's shareholders at an extraordinary general
meeting on November 9, 1999 (the "EGM") and has become effective and has
been completed as described in the Prospectuses under the heading
"Management - Employee Benefits Plan".
(i) Each of the Underwriting Agreements and the Deposit Agreement
has been duly authorized, executed and delivered by the Company.
(j) There is no franchise, contract or other document of a
character required to be described in the Registration Statement, ADR
Registration Statement or Prospectuses, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
description of each such contract, franchise
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or document in the Prospectuses is a fair description thereof in all
material respects.
(k) Upon issuance by the Depositary of ADSs evidenced by ADRs
against deposit of Underlying Shares in accordance with the provisions
of the Deposit Agreement, such ADRs will be duly and validly issued and
persons in whose names the ADRs are registered will be entitled to the
rights specified in the ADRs and in the Deposit Agreement; and upon the
sale and delivery to the International Underwriters of the International
Securities, and payment therefor, pursuant to this International
Underwriting Agreement, the International Underwriters will acquire
good, marketable and valid title to such International Securities
subject to the terms of the Deposit Agreement, free and clear of all
pledges, liens, security interests, charges, claims or encumbrances of
any kind. There are no limitations on the rights of any holders of the
ADSs to hold or vote the underlying Ordinary Shares other than those
arising in favor of persons purchasing through the International
Underwriters.
(l) Except as described in the Prospectuses, no stamp or other
issuance or transfer taxes or duties are payable to the Republic of
Singapore or any political subdivision or taxing authority thereof or
therein by or on behalf of the Underwriters in connection with (A) the
execution and delivery of the Underwriting Agreements or Deposit
Agreement, (B) the issuance of the Securities in the manner contemplated
by the Underwriting Agreements, (C) the deposit with the Depositary of
the Underlying Shares against issuance of the ADRs evidencing the ADSs,
(D) the sale and delivery by the Company of the Shares or the ADSs, as
the case may be, as contemplated herein or (E) the resale and delivery
of such Ordinary Shares and ADSs by the Underwriters in the manner
contemplated in the Prospectuses.
(m) Except as described in the Prospectuses, under current
Singapore law and regulations, all dividends and other distributions
declared and payable on the Ordinary Shares may be paid by the Company
to the Depositary and to the holders of Securities, as the case may be,
in Singapore dollars and may be converted into foreign currency and
freely transferred out of Singapore in accordance with the Deposit
Agreement, and all such dividends and other distributions made to
holders of the Underlying Shares or ADRs who are non-residents of
Singapore will not be subject to Singapore income, withholding or other
taxes under the laws and regulations of Singapore and, are otherwise
free and clear of any other tax, duty withholding or deduction in
Singapore and without the necessity of obtaining any government
authorization in Singapore.
(n) No consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection with
the transactions contemplated herein or in the Deposit Agreement, except
such as have been obtained under the Companies Act, Chapter 50 of
Singapore and such as have been obtained under the Act, and such as may
be required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the Underwriters
in the manner contemplated under the Underwriting Agreements and in the
Prospectuses.
(o) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof or of the Deposit Agreement will
conflict with, result in a breach or violation or imposition of any
lien, charge or encumbrance upon any property or
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assets of the Company or the Subsidiary pursuant to, (i) the Memorandum
and Articles of Association of the Company or the Subsidiary, (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 the Company or the Subsidiary is a party
or bound or to which their respective property is subject, except such
conflict, breach, violation or imposition of any lien, charge or
encumbrance which 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
Subsidiary, taken as a whole, whether or not arising from transactions
in the ordinary course of business (a "Material Adverse Effect"), or
(iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company or the Subsidiary of any court, regulatory
body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or the Subsidiary or any
of their respective properties except, in the case of the Subsidiary,
any such conflict, breach, violation or imposition of any lien, charge
or encumbrance which would not, individually or in the aggregate, have a
Material Adverse Effect.
(p) The Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Prospectuses, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(q) No holder of securities of the Company has rights to the
registration of such securities under the Registration Statement or the
ADR Registration Statement.
(r) The consolidated historical financial statements and
schedules of the Company included in the Prospectuses and the
Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the Company
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 generally accepted accounting principles of the
United States applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The summary and selected
financial data set forth under the caption "Recent Development",
"Summary Financial Data" and "Selected Consolidated Financial Data",
respectively, in the Prospectuses and Registration Statement present
fairly in all material respects, on the basis stated in the Prospectuses
and the Registration Statement, the information included therein.
(s) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or the Subsidiary or their property is pending or, to the best
knowledge of the Company, threatened that (i) could reasonably be
expected to have a material adverse effect on the performance of this
International Underwriting Agreement or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected to
have a Material Adverse Effect, except as set forth in the Prospectus.
(t) Each of the Company and the Subsidiary owns or leases all
such properties as are necessary to the conduct of its operations as
presently
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conducted, except where such failure to own or lease would not,
individually or in the aggregate, have a Material Adverse Effect.
(u) Neither the Company nor the Subsidiary is in violation or
default of (i) any provision of its charter or by-laws, (ii) any
provision of the United States Foreign Corrupt Practice Act of 1997,
(iii) 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 (iv) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or the Subsidiary or any of their
properties, as applicable except in the case of clauses (iii) or (iv),
where such violation or default (A) would not, individually or in the
aggregate, have a Material Adverse Effect or (B) would not, individually
or in the aggregate, have a material adverse effect in the performance
of this International Underwriting Agreement or the consummation of any
of the transactions contemplated herein;
(v) KPMG, who have certified certain financial statements of the
Company and delivered their report with respect to the audited
consolidated financial statements and schedules included in the
Prospectuses, are independent public accountants with respect to the
Company within the meaning of the Act and the applicable published rules
and regulations thereunder.
(w) The Company has not paid or agreed to pay to any person
(other than the Underwriters pursuant to the Underwriting Agreements)
any compensation for soliciting another to purchase any securities of
the Company.
(x) Each of the Company and the Subsidiary possesses all
licenses, certificates, permits and other authorizations issued by the
appropriate Singaporean, U.S. federal and state, and any other foreign
regulatory authorities necessary to conduct its business in the manner
described in and contemplated by, the Prospectuses except, in the case
of the Subsidiary, where the failure to possess any such license,
permit, certificate or other authorization would not, individually or in
the aggregate, have a Material Adverse Effect, and neither the Company
nor the Subsidiary has received any notice of proceedings relating to
the revocation or modification of any such certificate, authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse
Effect, except as set forth in the Prospectuses.
(y) No labor problem or dispute with the employees of the Company
or the Subsidiary exists or, to the best knowledge of the Company, is
threatened or imminent and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its principal
suppliers, contractors or customers, that could have a Material Adverse
Effect, except as set forth in the Prospectuses.
(z) The Company and the Subsidiary are insured by independent
insurers against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; all
policies of insurance insuring the Company or the Subsidiary or their
respective businesses, assets, employees, officers and directors are in
full force and effect; the Company and the Subsidiary are in compliance
with the terms of such policies and instruments in all material
respects; and there are no claims by the Company or the Subsidiary under
any
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such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause; neither the
Company nor any such subsidiary has been refused any insurance coverage
sought or applied for; and neither the Company nor the Subsidiary has
any reason to believe that it 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, individually or in the aggregate,
have a Material Adverse Effect, except as set forth in the Prospectuses
(exclusive of any supplement thereto).
(aa) To the Company's best knowledge, the Company and the
Subsidiary own, possess, license or have other rights to use all
patents, patent applications, trade and service marks, trade and service
▇▇▇▇ registrations, trade names, copyrights, licenses, 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 or as proposed in the
Prospectuses to be conducted, except where the failure to so own,
possess, license or have other rights would not have a Material Adverse
Effect . Except as set forth in the Prospectuses under the captions
"Risk Factors--Our intellectual property is important to our ability to
succeed in our business but may be difficult to protect and--We may be
subject to intellectual property rights disputes" or
"Business-Intellectual Property", to the Company's best knowledge: (a)
except with respect to certain licenses the Company has granted to
customers for assembly or testing development programs, there are no
rights of third parties in connection with 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 any third party 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 any third party 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 rights of any third party,
and the Company is unaware of any other fact which would form a
reasonable basis for any such claim; in the case of any of (a) through
(e) above, which would have a Material Adverse Effect and (f) such
Intellectual Property is valid.
(bb) The Company has implemented a comprehensive, detailed
program to analyze and address the risk that their computer hardware and
software may be unable to recognize and properly execute date-sensitive
functions involving certain dates prior to and any dates after December
31, 1999 (the "Year 2000 Problem") and has determined that its computer
hardware and software are and will be able to process all date
information prior to and after December 31, 1999 without any errors,
aborts, delays or other interruptions in operations associated with the
Year 2000 Problem;
(cc) The Company and the Subsidiary have filed all Singapore,
U.S. federal, state, and local, and all other 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, except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto)) and have paid all taxes
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required to be paid by them and any other assessment, fine or penalty
levied against them, 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, except as set forth in the Prospectuses (exclusive of
any supplement thereto).
(dd) No Underwriter will be deemed resident, domiciled, carrying
on business or subject to taxation in Singapore solely by reason of the
execution, delivery, consummation or enforcement of this International
Underwriting Agreement or any other document to be furnished hereunder
and no holder of the Securities will be deemed to be resident or
domiciled in Singapore solely by reason of holding such Securities.
(ee) The Company 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 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.
(ff) The Company represents and warrants that (i) the
Registration Statement, the ADR Registration Statement, the Prospectuses
and the Preliminary Prospectuses comply, and any further amendments or
supplements thereto will comply, with any applicable laws or regulations
of foreign jurisdictions in which the Prospectuses or Preliminary
Prospectuses, as amended or supplemented, if applicable, are distributed
in connection with the Directed Securities Program; and that (ii) no
authorization, approval, consent, license, order, registration or
qualification of or with any government, governmental instrumentality or
court is necessary to offer and sell Securities pursuant to the Directed
Securities Program, other than such as have been obtained, under the
laws and regulations of any jurisdiction in which the Directed
Securities are offered outside the United States.
(gg) The Company and the Subsidiary are (i) in compliance with
any and all applicable Singaporean, U.S. federal, state and local and
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"), (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 Effect, except as set forth in the
Prospectuses (exclusive of any supplement thereto).
(hh) The Company and the Subsidiary are in compliance with all
applicable employee pension and employee benefit plans except where such
non-
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compliance would not, individually or in the aggregate, have a Material
Adverse Effect.
(ii) The Company does not believe that it is a Passive Foreign
Investment Company ("PFIC") within the meaning of Section 1296 of the
United States Internal Revenue Code of 1986, as amended, and does not
expect to become a PFIC in the future.
(jj) Neither the Company nor the Subsidiary nor any of its or
their properties or assets has any immunity from the jurisdiction of any
court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution or
otherwise) under the laws of Singapore.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each U.S.
Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and
in reliance upon the representations and warranties set forth in this
International Underwriting Agreement, the Company agree to sell to each
International Underwriter, and each International Underwriter agrees, severally
and not jointly, to purchase from the Company, at a purchase price of U.S. $ -
per Ordinary Share in the case of International Underwritten Securities to be
delivered in the form of ADS or in the form of Ordinary Shares , the amount of
the International Underwritten Securities set forth opposite such International
Underwriter's name in Schedule I to this International Underwriting Agreement.
The respective numbers of International Underwritten Securities to be delivered
in the form of ADS or Ordinary Shares shall be pursuant to the direction of the
International Representatives.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this International Underwriting
Agreement, the Company hereby grants an option to the several International
Underwriters to purchase, severally and not jointly, up to 7,650,000
International Option Securities at the same purchase price per Ordinary Share as
the International Underwriters shall pay for the International Underwritten
Securities. Said option may be exercised only to cover over-allotments in the
sale of the International Underwritten Securities by the International
Underwriters. Said option may be exercised in whole or in part at any time (but
not more than once) on or before the 30th day after the date of the Prospectuses
upon written notice by the International Representatives to the Company setting
forth the number of shares of the International Option Securities as to which
the several International Underwriters are exercising the option and the
settlement date. The number of International Option Securities to be purchased
by each International Underwriter shall be the same percentage of the total
number of shares of the International Option Securities to be purchased by the
several International Underwriters as such International Underwriter is
purchasing of the International Underwritten Securities, subject to such
adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
3. Delivery and Payment. Delivery of and payment for the
International Underwritten Securities and the International Option Securities
(if the option provided for in Section 2(b) hereof shall have been exercised on
or before the third Business Day prior to the Closing Date) shall be made at
9:00 AM, New York City time, on February [8], 2000, (unless postponed in
accordance with Section 9 hereof) or at such time on such
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later date not more than ten Business Days after the foregoing date as the
International Representatives and the Company shall agree, (such date and time
of delivery and payment for the International Securities being called in this
International Underwriting Agreement the "Closing Date"). Delivery of the
International Securities shall be made to the International Representatives for
the respective accounts of the several International Underwriters against
payment by the several International Underwriters through the International
Representatives of the aggregate purchase price of the International Securities
being sold by the Company to or upon the order of the Company by wire transfer
payable in same-day funds in United States dollars to the account specified by
the Company. Delivery of the International Underwritten Securities and the
International Option Securities shall be made through the facilities of The
Depositary Trust Company unless the International Representatives shall instruct
otherwise.
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 the expense of the Company) to the International Representatives, c/o
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on
the date specified by the International Representatives (which shall be within
three Business Days after exercise of said option), certificates for the
International Option Securities in such names and denominations as the
International Representatives shall have requested for the respective accounts
of the several International Underwriters, against payment by the several
International Underwriters through the International Representatives of the
purchase price thereof to or upon the order of the Company by wire transfer and
payable in same day funds to the accounts specified by the Company. If
settlement for the International Option Securities occurs after the Closing
Date, the Company will deliver to the International Representatives on the
settlement date for the International Option Securities, and the obligation of
the International Underwriters to purchase the International Option Securities
shall be conditioned upon receipt of, supplemental opinions, certificates and
letters confirming as of such date the opinions, certificates and letters
delivered on the Closing Date pursuant to Section 6 hereof to the offices of
Shearman & Sterling, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
The certificates evidencing the International Underwritten
Securities and International Option Securities shall be registered in such names
and in such denominations as ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. may request not less than
one full business day prior to the applicable Closing Date.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the U.S. Underwriting Agreement and
the Singapore Underwriting Agreement, and that the settlement date for any
International Option Securities occurring after the Closing Date, shall occur
simultaneously with the settlement date under the U.S. Underwriting Agreement
and the Singapore Underwriting Agreement for any U.S. Option Securities and
Singapore Option Securities occurring after the Closing Date.
4. Offering by Underwriters. It is understood that the several
International Underwriters propose to offer the International Securities for
sale to the public as set forth in the International Prospectus.
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5. Agreements.
(i) The Company agrees with the several International Underwriters that:
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(a) The Company will use its best efforts to cause the
Registration Statement and the ADR Registration Statement, if not
effective at the Execution Time, and any amendment thereof, to become
effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement or
the ADR Registration Statement or supplement to the U.S. Prospectus or
any Rule 462(b) Registration Statement unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject
to the foregoing sentence, if the Registration Statement or the ADR
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the U.S. Prospectus is otherwise required under Rule
424(b), the Company will cause the U.S. Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to
the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the International
Representatives of such timely filing. The Company will promptly advise
the International Representatives (1) when the Registration Statement
and the ADR Registration Statement, if not effective at the Execution
Time, shall have become effective, (2) when the U.S. Prospectus, and any
supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement or ADR Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement or the ADR
Registration Statement shall have been filed or become effective, (4) of
any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement or the
ADR Registration Statement, or for any supplement to the U.S. Prospectus
or for any additional information, (5) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or the ADR Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order or the suspension of any such qualification and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result
of which the U.S. Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or the ADR Registration
Statement or supplement the U.S. Prospectus to comply with the Act or
the rules thereunder, the Company promptly will (1) notify the
International Representatives of any such event; (2) prepare and file
with the Commission, subject to the second sentence of paragraph (i)(a)
of this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance; and (3) supply any
supplemented Prospectus to you in such quantities as you may reasonably
request. If at any time the Company supplements or amends the U.S.
Prospectus, it will promptly make conforming changes to the
International and Singapore Prospectuses and supply copies thereof to
the International Representatives unless otherwise agreed by the
International Representatives.
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(c) As soon as practicable, the Company will timely file such
reports pursuant to the Exchange Act as are necessary in order to make
generally available to its security holders and to the International
Representatives an earnings statement or statements covering the 12
month period ending December 31, 2000 of the Company 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 International Representatives
and counsel for the International Underwriters, without charge, signed
copies of the Registration Statement and the ADR Registration Statement
(including exhibits thereto) and to each other International Underwriter
a copy of the Registration Statement and the ADR Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by
an International Underwriter or dealer may be required by the Act, as
many copies of each International and Singapore Preliminary Prospectus
and the International and Singapore Prospectus and any supplement
thereto as the International Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
International Representatives may reasonably designate and will maintain
such qualifications in effect so long as required for the distribution
of the International Securities; provided, however, that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to
cash settlement or otherwise) by the Company, directly or indirectly,
including the filing (or participation in the filing) of a registration
statement with the Commission in respect of, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any
Ordinary Shares or ADSs or any securities convertible into, or
exercisable, or exchangeable for, Ordinary Shares or ADSs; or publicly
announce an intention to effect any such transaction, for a period of
180 days after the date of the Underwriting Agreements, provided,
however, that the Company may issue and sell Ordinary Shares pursuant to
any employee stock option plan or stock ownership plan of the Company in
effect at the Execution Time and may file a registration statement on
Form S-8 with respect thereto and the Company may issue Ordinary Shares
issuable upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Ordinary Shares or the
ADSs.
(h) The Company agrees to pay the costs and expenses relating to
the following matters: (i) the preparation, printing or reproduction and
filing with the
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Commission of the Registration Statement (including financial statements
and exhibits thereto), each Preliminary Prospectus, each Prospectus, the
ADR Registration Statement, and each amendment or supplement to any of
them; (ii) the preparation of the Deposit Agreement, the deposit of the
Underlying Shares under the Deposit Agreement, the issuance thereunder
of ADSs representing such deposited Underlying Shares, the issuance of
ADRs evidencing such ADSs and the fees of the Depositary; (iii) the
printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Prospectus, each Prospectus,
the ADR Registration Statement, and all amendments or supplements to any
of them, as may, in each case, be reasonably requested for use in
connection with the offering and sale of the Securities; (iv) the
preparation, printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp or transfer taxes
in connection with the original issuance and sale of the Securities; (v)
the printing (or reproduction) and delivery of this International
Underwriting Agreement, the U.S. Underwriting Agreement and the
Singapore Underwriting Agreement, any blue sky memorandum and all other
agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (vi) the registration of
the Securities under the Exchange Act and the listing of the Ordinary
Shares on the Stock Exchange of Singapore and the listing of the ADSs on
the Nasdaq National Market; (vii) any registration or qualification of
the Securities for offer and sale under the securities or blue sky laws
of the several states (including filing fees and the reasonable fees and
expenses of counsel for the Underwriters relating to such registration
and qualification); (viii) any filings required to be made with the
National Association of Securities Dealers, Inc. (including filing fees
and the reasonable fees and expenses of counsel for the Underwriters
relating to such filings); (ix) the transportation and other expenses
incurred by or on behalf of Company representatives in connection with
presentations to prospective purchasers of the Securities; (x) the fees
and expenses of the Company's accountants and the fees and expenses of
counsel (including ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ & Sterling) for the
Company; (xi) except as may be agreed between the Company and the
Depositary, the cost and charges of any transfer agent or registrar;
(xii) any stamp, issue, registration or documentary taxes and duties
arising as a result of the issuance of the Securities, of the sales and
delivery of the Securities by the Company to or for the account of the
Underwriters, of the sale and delivery of the Securities by the
Underwriters to each other and, of the sale and delivery of the
Securities by the Underwriters to the initial purchasers thereof in the
manner contemplated under the Underwriting Agreements; and (xiii) all
other costs and expenses incident to the performance by the Company of
their obligations under the Underwriting Agreements.
(j) the Company covenants with ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. that the
Company will comply with all applicable securities and other applicable
laws, rules and regulations in each foreign jurisdiction in which the
Directed Securities are offered in connection with the Directed
Securities Program.
(ii) Each International Underwriter agrees that (a) it is not
purchasing any of the International Securities for the account of any United
States or Canadian Person, (b) it has not offered or sold, and will not offer or
sell, directly or indirectly, any of the International Securities or distribute
any International Prospectus to any person in the United States or Canada, or to
any United States or Canadian Person, and (c) any dealer to whom it may sell any
of the International Securities will represent that it is not purchasing for the
account of any United States or Canadian Person and agree that it will
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not offer or resell, directly or indirectly, any of the International Securities
in the United States or Canada, or to any United States or Canadian Person or to
any other dealer who does not so represent and agree; provided, however, that
the foregoing shall not restrict (A) purchases and sales between the U.S.
Underwriters or the Singapore Underwriters on the one hand and the International
Underwriters on the other hand pursuant to the Agreement Among U.S.
Underwriters, International Underwriters and Singapore Underwriters, (B)
stabilization transactions contemplated under the Agreement Among U.S.
Underwriters, International Underwriters, and Singapore Underwriters conducted
through ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (or through the U.S. Representatives,
International Representatives and Singapore Representatives) as part of the
distribution of the Securities, and (C) sales to or through (or distributions of
International or Singapore Prospectuses or International or Singapore
Preliminary Prospectuses to) persons not United States or Canadian Persons who
are investment advisors, or who otherwise exercise investment discretion, and
who are purchasing for the account of any United States or Canadian Person.
The agreements of the International Underwriters set forth in
this paragraph (ii) of Section 5 shall terminate upon the earlier of the
following events:
(x) a mutual agreement of the U.S. Representatives, International
Representatives and Singapore Representatives to terminate the selling
restrictions set forth in paragraph (ii) of this Section 5, Section
5(ii) of the U.S. Underwriting Agreement and Section 2(e) and (f) of the
Agreement Among U.S. Underwriters, International Underwriters and
Singapore Underwriters; or
(y) the expiration of a period of 30 days after the Closing Date,
unless (A) the International Representatives shall have given notice to
the Company, the U.S. Representatives and the Singapore Representatives
that the distribution of the International Securities by the
International Underwriters has not yet been completed, or (B) the U.S.
Representatives shall have given notice to the Company, the
International Representatives and the Singapore Representatives that the
distribution of the U.S. Securities by the U.S. Underwriters has not yet
been completed, or (C) the Singapore Representatives shall have given
notice to the Company, the U.S. Representatives and the International
Representatives that the distribution of the Singapore Securities by the
Singapore Underwriters has not yet been completed. If such notice by the
U.S. Representatives, the International Representatives or the Singapore
Representatives is given, the agreements set forth in such paragraph
(ii) shall survive until the earlier of (1) the event referred to in
clause (x) of this subsection or (2) the expiration of an additional
period of 30 days from the date of any such notice.
(iii) Each International Underwriter severally represents and
agrees that:
(a) it has not offered or sold and, prior to the expiry of six
months from the Closing Date, will not offer or sell any International
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments, (whether as principal or agent) for the
purpose of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities
Regulations 1995;
(b) it has complied and will comply with all applicable
provisions of the Financial Services ▇▇▇ ▇▇▇▇ with respect to anything
done by it in relation to the International Securities, in, from or
otherwise involving the United Kingdom; and
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(c) it has only issued or passed on, and will only issue or pass
on, in the United Kingdom any document received by it in connection with
the issue of the International Securities to a person who is of a kind
described in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇
(Investment Advertisements) (Exemptions) Order 1996, (as amended), or a
person to whom the document may otherwise lawfully be issued or passed
on;
(d) it has not offered or sold and will not offer or sell,
directly or indirectly, in Japan or to or for the account of any
resident of Japan any International Securities, except (A) under an
exemption from the registration requirements of the Securities and
Exchange Law of Japan and (B) in compliance with any other applicable
requirements of Japanese law;
(e) it will send to any dealer who purchases from it any
International Securities a notice stating in substance that, by
purchasing such International Securities, the dealer represents and
agrees that it has not offered or sold, and will not offer or sell, any
of the Shares or ADSs, directly or indirectly, in Japan or to or for the
account of any resident thereof except pursuant to an exemption from the
registration requirements of the Securities and Exchange Law of Japan,
and that the dealer will send to any other dealer to whom it sells any
International Securities a notice containing substantially the same
statement as is contained in this sentence;
(f) it has not offered or sold and will not offer or sell any
International Securities in Hong Kong by means of any document, other
than to persons whose ordinary business it is to buy or sell shares or
debentures, whether as principal or agent, except in circumstances which
do not constitute an offer to the public within the meaning of the
Companies Ordinance (Chapter 32) of Hong Kong;
(g) it has not issued and will not issue any invitation or
advertisement relating to the International Securities in Hong Kong,
except if permitted to do so by the securities law of Hong Kong or to be
disposed of in Hong Kong only to persons whose business involves the
acquisition, disposal or holding of shares whether as principal or
agent; and
(h) it has not and will not offer or sell any International
Securities or distribute any document or other material relating to the
International Securities, either directly or indirectly, to the public
or any member of the public in Singapore other than (A) to an
institutional investor or other person specified in Section 106C of the
Companies Act, Chapter 50 of Singapore, or (B) to a sophisticated
investor as specified in Section 106D of the Companies Act Chapter 50 of
Singapore (any of the foregoing a "Singapore Institutional Investor").
(i) it has complied and will comply with all applicable laws and
regulations and has made or obtained or will make or obtain all
necessary filings, consents or approvals in each jurisdiction in which
it purchases, offers, sells or delivers International Securities
(including, without limitation, any applicable requirements relating to
the delivery of the Preliminary Prospectuses or Prospectuses), in each
case at its own expense; and
6. Conditions to the Obligations of the International
Underwriters. The obligations of the International Underwriters to purchase the
International Underwritten Securities and the International Option Securities,
as the case may be, shall be subject to
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the accuracy of the representations and warranties on the part of the Company
contained in this International Underwriting Agreement as of the Execution Time,
the Closing Date and any settlement date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
under this International Underwriting Agreement and to the following additional
conditions:
(a) If the Registration Statement and the ADR Registration
Statement have not become effective prior to the Execution Time, unless the U.S.
Representatives, International Representatives and Singapore Representatives
agree in writing to a later time, the Registration Statement and the ADR
Registration Statement will become effective not later than (i) 6:00 PM New York
City time on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on such date or
(ii) 9:30 AM on the Business Day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the U.S. Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the U.S. Prospectus, and any such
supplement, will be filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the Registration
Statement or the ADR Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
special 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 hereto.
(c) The Company shall have requested and caused Shearman &
Sterling, 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 B hereto.
(d) The Depositary shall have requested and caused Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, LLP, counsel for the Depositary, 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 C hereto.
(e) The Representatives shall have received from Cravath, Swaine
& ▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the issuance
and sale of the Securities, the Registration Statement, the ADR Registration
Statement, the Prospectuses (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have examined
the Registration Statement, the ADR Registration Statement, the Prospectuses,
any supplements to the Prospectuses and the Underwriting Agreements and that:
(i) the representations and warranties of the Company in the
Underwriting Agreements are true and correct in all material respects on
and as
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of the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or the ADR Registration Statement has been issued
and no proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectuses (exclusive of any supplement thereto),
there has been no material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiary, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(g) The Company shall have requested and caused KPMG to have
furnished to the Representatives letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
Representatives, to the effect set forth in Section 6(g) of the U.S.
Underwriting Agreement.
(h) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive of any
amendment thereof), and the Prospectuses (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (g) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, prospects, business or properties of the
Company and the Subsidiary, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectuses (exclusive of any supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the International Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the offering or delivery
of the International Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof), the ADR Registration Statement and the
Prospectuses (exclusive of any supplement thereto).
(i) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A hereto from
each executive officer and director of the Company named in the U.S. Prospectus,
selected employees of the Company and Singapore Technologies Pte Ltd., Singapore
Technologies Semiconductor Pte Ltd., and EDB Investments Pte Ltd. addressed to
the Representatives.
(j) The Company and the Depositary shall have executed and
delivered the Deposit Agreement in form and substance satisfactory to the
Representatives and the Deposit Agreement shall be in full force and effect;
(k) The Depositary shall have furnished or caused to be furnished
to the Representatives certificates satisfactory to the Representatives
evidencing the deposit with the Depositary or its nominee of the Underlying
Shares in respect of which ADSs to be purchased by the Underwriters on such
Closing Date are to be issued, and the execution, issuance, countersignature (if
applicable) and delivery of the ADRs evidencing
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such ADSs pursuant to the Deposit Agreement and such other matters related
thereto as the Representatives reasonably request;
(l) The closing of the purchase of the U.S. Underwritten
Securities and Singapore Underwritten Securities to be issued and sold by the
Company pursuant to the U.S. Underwriting Agreement and the Singapore
Underwriting Agreement, respectively, shall occur concurrently with the closing
of the purchase of the International Underwritten Securities described herein.
(m) The Ordinary Shares shall have been listed and admitted and
authorized for trading on the Stock Exchange of Singapore, and the ADSs shall
have been listed and admitted and authorized for trading on the Nasdaq National
Market and satisfactory evidence of all such actions shall have been provided to
the Representatives.
(n) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
(o) The Company shall have delivered a letter from the President
of Singapore Technologies Assembly and Test Services, Inc. confirming and
accepting his appointment as agent for service of process pursuant to Section 15
hereof and Section [ ] of the Deposit Agreement.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
International Underwriting Agreement and the U.S. Underwriting Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
International Underwriting Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this International Underwriting Agreement and all
obligations of the International Underwriters under this International
Underwriting Agreement 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 shall be
delivered at the office of Shearman & Sterling, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, on the Closing Date.
7. Reimbursement of U.S. Underwriters' Expenses. The Company has
agreed to reimburse the International and U.S. Underwriters severally through
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. on demand for out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities up to a
maximum of $750,000, in addition to the costs and expenses to be paid by the
Company pursuant to Section 5(h) hereof. In addition, if the sale of the
International Securities provided for in this International Underwriting
Agreement is not consummated because any condition to the obligations of the
International Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement in this International. Underwriting Agreement or comply with any
provision hereof other than by reason of a default by any of the International
Underwriters, the Company will reimburse the International. Underwriters
severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
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the Securities up to a maximum of US$750,000, in addition to the costs and
expenses to be paid by the Company pursuant to Section 5(h) hereof.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each International Underwriter, the directors,
officers, employees and agents of each International Underwriter and each person
who controls any International Underwriter within the meaning of either the Act
or the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement for the registration of the Securities as originally
filed or in any amendment thereof, or in the ADR Registration Statement as
originally filed or in any amendment thereof, or in any U.S., International or
Singapore Preliminary Prospectus or in any of the Prospectuses, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any International Underwriter through the
International Representatives specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have provided further, that with respect to any untrue statement or omission of
material fact made in any Preliminary Prospectus, the indemnity agreement
contained in this Section 8(a) shall not inure to the benefit of any
International Underwriter from whom the person asserting any such loss, claim,
damage or liability purchased the securities concerned to the extent that any
such loss, claim, damage or liability of such International Underwriter occurs
under the circumstance where it shall have been determined by a court of
competent jurisdiction by final and nonappealable judgment that (w) the Company
had previously furnished copies of the Prospectus to the Representatives, (x)
delivery of the Prospectus was required by the Act to be made to such person,
(y) the untrue statement or omission of a material fact contained in the
Preliminary Prospectus was corrected in the Prospectus and (z) there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such securities to such person, a copy of the Prospectus.
(b) The Company agrees to indemnify and hold harmless each
International Underwriter and each person, if any, who controls such
International Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in the prospectus wrapper
material prepared by or with the consent of the Company for distribution in
foreign jurisdictions in connection with the Directed Securities Program
attached to the Prospectuses or any Preliminary Prospectus, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statement therein, when considered in
conjunction with the Prospectuses or any applicable Preliminary Prospectus, not
misleading; or (ii) related to, arising out of, or in
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connection with the Directed Securities Program; provided that, the Company
shall not be responsible under this subparagraph (ii) for any losses, claim,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted primarily from the bad faith or gross
negligence of any International Underwriter.
(c) Each International Underwriter severally and not jointly
agrees to indemnify and hold harmless the Company, each of its directors, each
of its officers who signs the Registration Statement or the ADR Registration
Statement, the employees of the Company and each person who controls the Company
within the meaning of either the Act or the Exchange Act to the same extent as
the foregoing indemnity to each International Underwriter, but only with
reference to written information relating to such International Underwriter
furnished to the Company by or on behalf of such International Underwriter
through the International Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any International Underwriter may
otherwise have. The Company acknowledges that the statements set forth in the
last paragraph of the cover page regarding delivery of the International
Securities and, under the heading "Underwriting", (i) the list of Underwriters
and their respective participation in the sale of the Securities, (ii) the
sentences related to concessions and reallowances and (iii) the paragraph
related to stabilization, syndicate covering transactions and penalty bids in
any International Preliminary Prospectus and the International Prospectus
constitute the only information furnished in writing by or on behalf of the
several International Underwriters for inclusion in any International
Preliminary Prospectus or the International Prospectuses.
(d) Promptly after receipt by an indemnified party under this
Section 8 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 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) or (c) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a), (b) or (c) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be 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. Notwithstanding anything
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contained herein to the contrary, if indemnity may be sought pursuant to
paragraph (b) above hereof in respect of such action or proceeding, then in
addition to such separate firm for the indemnified parties, the indemnifying
party shall be liable for the reasonable fees and expenses of not more than one
separate firm (in addition to any local counsel) for the International
Underwriters for the defense of any losses, claims, damages and liabilities
arising out of the Directed Securities Program, and all persons, if any, who
control such International Underwriters within the meaning of either Section 15
of the Act or Section 20 of the Exchange Act. It is understood, however, that
the Company shall, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such International Underwriters and controlling
persons, which firm shall be designated in writing by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
under this International Underwriting Agreement (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or
proceeding. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent.
(e) In the event that the indemnity provided in paragraph (a),
(b) or (c) of this Section 8 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company and the International
Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "Losses") to
which the Company, and one or more of the International Underwriters may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and by the International Underwriters on
the other from the offering of the International Securities; provided, however,
that in no case shall any International Underwriter (except as may be provided
in any agreement among underwriters relating to the offering of the
International Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities purchased by
such International Underwriter under this International Underwriting Agreement.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company and the International Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
of the International Underwriters on the other 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 International Underwriters shall be
deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the International Prospectus. Relative
fault shall be determined by reference to, among other things, whether any
untrue or 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 on the one hand or the International Underwriters on the other, 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 International Underwriters agree that it would not be just and equitable
if contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable
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considerations referred to above. Notwithstanding the provisions of this
paragraph (e), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an International Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an International Underwriter shall have the same rights to
contribution as such International Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement or the ADR
Registration Statement, the employees of the Company, and each director of the
Company shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this paragraph (e).
9. Default by an International Underwriter. If any one or more
International Underwriters shall fail to purchase and pay for any of the
International Securities agreed to be purchased by such International
Underwriter or International Underwriters under this International Underwriting
Agreement and such failure to purchase shall constitute a default in the
performance of its or their obligations under this International Underwriting
Agreement, the remaining International Underwriters shall be obligated severally
to take up and pay for (in the respective proportions which the amount of
International Securities set forth opposite their names in Schedule I hereto
bears to the aggregate amount of International Securities set forth opposite the
names of all the remaining International Underwriters) the International
Securities which the defaulting International Underwriter or International
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of International Securities which the defaulting
International Underwriter or International Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of International Securities
set forth in Schedule I hereto, the remaining International Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the International Securities, and if such nondefaulting
International Underwriters do not purchase all the International Securities,
this International Underwriting Agreement will terminate without liability to
any nondefaulting International Underwriter or the Company. In the event of a
default by any International Underwriter as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as the International Representatives shall determine in order that the
required changes in the Registration Statement, the ADR Registration Statement
and the Prospectuses or in any other documents or arrangements may be effected.
Nothing contained in this International Underwriting Agreement shall relieve any
defaulting International Underwriter of its liability, if any, to the Company
and any nondefaulting International Underwriter for damages occasioned by its
default under this International Underwriting Agreement.
10. Termination. This International Underwriting Agreement shall
be subject to termination in the absolute discretion of the International
Representatives, by notice given to the Company prior to delivery of and payment
for the International Securities, if at any time prior to such time (i) trading
in the Company's Ordinary Shares shall have been suspended by the Stock Exchange
of Singapore or trading in the ADSs shall have been suspended by the Commission
or the Nasdaq National Market or trading in securities generally on the New York
Stock Exchange or the Stock Exchange of Singapore or the Nasdaq National Market
shall have been suspended or limited or minimum prices shall have been
established on either of such Exchanges or the Nasdaq National Market, (ii) a
banking moratorium shall have been declared by U.S. Federal, New York State or
Singapore authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities involving the United States or Singapore, declaration
by the
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United States or Singapore of a national emergency or war, or other calamity or
crisis the effect of which on financial markets is such as to make it, in the
sole judgment of the International Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the International Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the International Underwriters set forth in or
made pursuant to this International Underwriting Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
International Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the International Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancellation of this International
Underwriting Agreement.
12. Notices. All communications under this International
Underwriting Agreement will be in writing and effective only on receipt, and, if
sent to the International Representatives, will be mailed, delivered or
telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. General Counsel (fax no.: (212)
▇▇▇-▇▇▇▇) and confirmed to such General Counsel at Salomon Brothers
International Limited (fax no.: (▇▇) ▇▇▇-▇▇▇-▇▇▇▇), Victoria Plaza, ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ OSB England, Attention: General Counsel; or,
if sent to the Company, will be mailed, delivered or telefaxed to ▇▇▇▇▇▇▇ ▇▇▇▇,
(▇▇) ▇▇▇-▇▇▇▇ and confirmed to it at ST Assembly Test Services Ltd., ▇ ▇▇▇▇▇▇ ▇▇
▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, attention of the Legal Department.
13. Successors. This International Underwriting Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and controlling persons
referred to in Section 8 hereof, and no other person will have any right or
obligation under this International Underwriting Agreement.
14. Applicable Law. This International Underwriting Agreement
will be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be performed within the State of
New York.
15. Jurisdiction. The Company agrees that any suit, action or
proceeding against the Company brought by any International Underwriter, by the
directors, officers, employees and agents of any International Underwriter, or
by any person who controls any International Underwriter, arising out of or
based upon this International Underwriting Agreement or the transactions
contemplated hereby may be instituted in any New York Court, and waives any
objection which it may now or hereafter have to the laying of venue of any such
proceeding, and irrevocably submits to the non-exclusive jurisdiction of such
courts in any suit, action or proceeding. The Company has appointed the
President of ST Assembly and Test Services, Inc. as its authorized agent (the
"Authorized Agent") upon whom process may be served in any suit, action or
proceeding arising out of or based upon this International Underwriting
Agreement or the transactions contemplated herein which may be instituted in any
New York Court, by any International Underwriter, the directors, officers,
employees and agents of any International Underwriter, or by any person who
controls any International Underwriter, and expressly accepts the non-exclusive
jurisdiction of any such court in respect of any such suit, action or
proceeding. The Company hereby represents and warrants that the Authorized Agent
has accepted such appointment and has agreed to act as said agent for service of
process, and the Company agrees to take any
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and all action, including the filing of any and all documents that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent shall be deemed, in every respect,
effective service of process upon the Company. Notwithstanding the foregoing,
any action arising out of or based upon this International Underwriting
Agreement may be instituted by any International Underwriter, the directors,
officers, employees and agents of any International Underwriter, or by any
person who controls any International Underwriter, in any court of competent
jurisdiction in Singapore.
The provisions of this Section 15 shall survive any termination
of this International Underwriting Agreement, in whole or in part.
16. Currency. Each reference in this International Underwriting
Agreement to U.S. Dollars (the "relevant currency") is of the essence. To the
fullest extent permitted by law, the obligations of the Company and the
International Underwriters in respect of any amount due under this International
Underwriting Agreement will, notwithstanding any payment in any other currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in the relevant currency that the party entitled to receive such
payment may, in accordance with its normal procedures, purchase with the sum
paid in such other currency (after any premium and costs of exchange) on the
Business Day immediately following the day on which such party receives such
payment. If the amount in the relevant currency that may be so purchased for any
reason falls short of the amount originally due, the party required to pay such
original amount will pay such additional amounts, in the relevant currency, as
may be necessary to compensate for the shortfall. If, alternatively, the amount
in the relevant currency that may be so purchased for any reason exceeds the
amount originally due, the party entitled to receive such original amount will
return such excess amounts, in the relevant currency, to the Company. Any
obligation of the party required to pay such original amount 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.
17. 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 International Underwriting Agreement.
18. Counterparts. This International Underwriting Agreement may
be signed in one or more counterparts, each of which shall constitute an
original and all of which together shall constitute one and the same agreement.
19. Headings. The section headings used in this International
Underwriting Agreement are for convenience only and shall not affect the
construction hereof.
20. Definitions. The terms which follow, when used in this
International Underwriting Agreement, shall have the meanings indicated.
"Act" shall mean the United States Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
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"ADR Registration Statement" shall mean the registration
statement referred to in paragraph 1(i)(c) above, including all exhibits
thereto, each as amended at the time such part of the registration
statement became effective.
"Business Day" shall mean any day other than a Saturday, a Sunday
or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City
or Singapore.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement and the ADR Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or become effective.
"Exchange Act" shall mean the United States Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Execution Time" shall mean the date and time that this
International Underwriting Agreement is executed and delivered by the
parties hereto.
"International Preliminary Prospectus" shall mean any preliminary
prospectus with respect to the offering of the International Securities.
"International Prospectus" shall mean such form of prospectus
relating to the offering of the International Securities as referred to
in paragraph 1(i)(a) above.
"International Representatives" shall mean the addressees of the
International Underwriting Agreement.
"International Securities" shall mean the International
Underwritten Securities and the International Option Securities.
"International Underwriters" shall mean the several underwriters
named in Schedule I to this International Underwriting Agreement.
"International Underwriting Agreement" shall mean this agreement
relating to the sale of the International Securities by the Company to
the International Underwriters.
"New York Courts" shall mean the U.S. Federal or State courts
located in the State of New York, County of New York.
"Option Securities" shall mean the U.S. Option Securities, the
International Option Securities and the Singapore Option Securities
"Option Shares" shall mean the U.S. Option Shares, the
International Option Shares and the Singapore Option Shares.
"Preliminary Prospectus" shall mean the U.S. Preliminary
Prospectus, the International Preliminary Prospectus and the Singapore
Preliminary Prospectus.
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"Prospectuses" and "each Prospectus" shall mean the U.S.
Prospectus, the International Prospectus and the Singapore Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended or such Rule
462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Representatives" shall mean the U.S. Representatives, the
International Representatives and the Singapore Representatives.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under
the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a)(i) hereof.
"Securities" shall mean the U.S. Securities, the International
Securities and the Singapore Securities.
"Shares" shall mean the U.S. Shares, International Shares and the
Singapore Shares.
"Singapore Preliminary Prospectus" shall mean any preliminary
prospects with respect to the offering of the Singapore Securities.
"Singapore Prospectus" shall mean such form of prospectus
relating to the Singapore Securities consisting of a special wrap around
the International Prospectus.
"Singapore Representatives" shall mean the addressees of the
Singapore Underwriting Agreement.
"Singapore Securities" shall mean the Singapore Underwritten
Securities and the Singapore Option Securities.
"Singapore Underwriters" shall mean the several underwriters
named in Schedule I to the Singapore Underwriting Agreement.
"Singapore Underwriting Agreement" shall mean the Singapore
Management and Underwriting Agreement dated the date hereof related to
the sale of the Singapore Securities by the Company to the Singapore
Underwriters.
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"Underlying Shares" shall mean the Shares that will be
represented by the ADSs.
"Underwriter" and "Underwriters" shall mean the U.S.
Underwriters, the International Underwriters and the Singapore
Underwriters.
"Underwritten Securities" shall mean the U.S. Underwritten
Securities, the International Underwritten Securities and the Singapore
Underwritten Securities.
"Underwritten Shares" shall mean the U.S. Underwritten Shares,
the International Underwritten Shares and the Singapore Underwritten
Shares.
"United States or Canadian Person" shall mean any person who is a
national or resident of the United States or Canada, any corporation,
partnership, or other entity created or organized in or under the laws
of the United States or Canada or of any political subdivision thereof,
or any estate or trust the income of which is subject to United States
or Canadian Federal income taxation, regardless of its source (other
than any non-United States or non-Canadian branch of any United States
or Canadian Person), and shall include any United States or Canadian
branch of a person other than a United States or Canadian Person. "U.S."
or "United States" shall mean the United States of America (including
the states thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"U.S. Preliminary Prospectus" shall mean any preliminary
prospectus with respect to the offering of the U.S. Securities as
referred to in paragraph 1(i)(a) above and any preliminary prospectus
with respect to the offering of the U.S. Securities included in the
Registration Statement at the Effective Date that omits Rule 430A
Information.
"U.S. Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"U.S. Representatives" shall mean the addressees of the U.S.
Underwriting Agreement.
"U.S. Securities" shall mean the U.S. Underwritten Securities and
the U.S. Option Securities.
"U.S. Underwriting Agreement" shall mean the agreement dated the
date hereof relating to the sale of the U.S. Securities by the Company
to the U.S. Underwriters.
"U.S. Underwriters" shall mean the several underwriters named in
Schedule I to the U.S. Underwriting Agreement.
31
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several International Underwriters.
Very truly yours,
ST Assembly Test Services Ltd
By:
--------------------------------
Name:
Title:
32
32
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers International Limited
Credit Suisse First Boston (Singapore) Limited
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
Societe Generale
By: Salomon Brothers International Limited.
By:
-----------------------------------
Name:
Title:
33
SCHEDULE I
NUMBER OF INTERNATIONAL
UNDERWRITTEN SECURITIES
INTERNATIONAL UNDERWRITERS TO BE PURCHASED
-------------------------- ------------------------
Salomon Brothers International Limited
Credit Suisse First Boston (Singapore) Limited
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
Societe Generale
------------
Total . . . . . . . . . ============
34
EXHIBIT A
[Version One]
ST Assembly Test Services Ltd
Public Offering of Ordinary Shares
, 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Salomon Brothers International Limited and
Citicorp Investment Bank (Singapore) Limited
As Representatives of the several U.S. Underwriters,
International Underwriters and Singapore Underwriters,
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed U.S. Underwriting Agreement, International Underwriting Agreement and
Singapore Underwriting Agreement (the "Underwriting Agreements"), between ST
Assembly Test Services Ltd., a company organized under the laws of Singapore
(the "Company"), and each of you as representatives of a group of U.S.
Underwriters, International Underwriters and Singapore Underwriters named
therein, relating to an underwritten public offering of 150,000,000 Ordinary
Shares, S$0.25 par value per share, of the Company, directly or in the form of
American Depositary Shares ("ADSs").
In order to induce you and the other U.S. Underwriters,
International Underwriters and Singapore Underwriters to enter into the
Underwriting Agreements, the undersigned will not, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., offer, sell, contract to sell, pledge or
otherwise dispose of (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise), directly or indirectly, or
announce the offering of, any Ordinary Shares or ADSs or any securities
convertible into, or exercisable or exchangeable for, Ordinary Shares or ADSs,
for a period of 180 days after the date of the Underwriting Agreements, other
than Directed Securities (as defined in the Underwriting Agreements), or
Ordinary Shares or ADSs disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Inc.
If for any reason the Underwriting Agreements shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreements), the
agreement set forth above shall likewise be terminated.
Yours very truly,
[SIGNATURE OF SELECTED EMPLOYEE OR
MAJOR STOCKHOLDER]
[NAME AND ADDRESS OF SELECTED EMPLOYEE
OR MAJOR STOCKHOLDER]
35
2
[Version Two]
ST Assembly Test Services Ltd
Public Offering of Ordinary Shares
, 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
Salomon Brothers International Limited and
Citicorp Investment Bank (Singapore) Limited
As Representatives of the several U.S. Underwriters,
International Underwriters and Singapore Underwriters,
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed U.S. Underwriting Agreement, International Underwriting Agreement and
Singapore Underwriting Agreement (the "Underwriting Agreements"), between ST
Assembly Test Services Ltd., a company organized under the laws of Singapore
(the "Company"), and each of you as representatives of a group of U.S.
Underwriters, International Underwriters and Singapore Underwriters named
therein, relating to an underwritten public offering of 150,000,000 Ordinary
Shares, S$0.25 par value per share, of the Company, directly or in the form of
American Depositary Shares ("ADSs").
In order to induce you and the other U.S. Underwriters,
International Underwriters and Singapore Underwriters to enter into the
Underwriting Agreements, the undersigned will not, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., offer, sell, contract to sell, pledge or
otherwise dispose of (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise), directly or indirectly, or
announce the offering of, any Ordinary Shares or ADSs or any securities
convertible into, or exercisable or exchangeable for, Ordinary Shares or ADSs,
for a period of 180 days after the date of the Underwriting Agreements, other
than Ordinary Shares or ADSs disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
If for any reason the Underwriting Agreements shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreements), the
agreement set forth above shall likewise be terminated.
Yours very truly,
[SIGNATURE OF OFFICER, DIRECTOR OR SELECTED
EMPLOYEE]
[NAME AND ADDRESS OF OFFICER, DIRECTOR
OR SELECTED EMPLOYEE]
36
APPENDIX A
[On the letterhead of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇]
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇ Securities Corporation
as U.S. Representatives of the several U.S. Underwriters
Salomon Brothers International Limited
Credit Suisse First Boston (Singapore) Limited
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
Societe Generale
as International Representatives of the several
International Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
[8th] February, 2000
Dear Sirs,
1. We have acted as legal counsel to ST Assembly Test Services Ltd (the
"Company") in the Republic of Singapore in connection with a global offering
(the "Offering") of 150,000,000 ordinary shares ("Ordinary Shares") of par value
S$0.25 each in the capital of the Company (such offered Ordinary Shares, the
"Offered Shares"), directly or in the form of American Depositary Shares
("ADSs"), as described in the prospectus contained in the Company's Registration
Statement on Form F-1, as amended (the "Registration Statement"), filed with the
United States Securities and Exchange Commission. We are delivering this opinion
to you at the request of the Company pursuant to (i) Section [6(b)] of the U.S.
Underwriting Agreement (the "U.S. Underwriting Agreement") dated [27th] January,
2000 among the U.S. Underwriters named therein and the Company and (ii) Section
[6(b)] of the International Underwriting Agreement (the "International
Underwriting Agreement") dated [27th] January, 2000 among the International
Underwriters named therein and the Company.
2. For the purpose of rendering this opinion, we have examined:-
(i) an executed copy of the U.S. Underwriting Agreement;
(ii) an executed copy of the International Underwriting Agreement;
(iii) an executed copy of the Management and Underwriting Agreement
relating to the Singapore Retail Offering (the "Singapore
Underwriting Agreement") dated [28th] January, 2000 among the
Managers named therein and the Company;
(iv) an executed copy of the Deposit Agreement (as defined in the
U.S. Underwriting Agreement);
(v) the prospectus (the "U.S. Prospectus") dated [28th] January,
2000 relating to the U.S. Offering (as defined in the U.S.
Underwriting Agreement);
37
2
(vi) the prospectus (the "International Prospectus") dated [28th]
January, 2000 relating to the International Offering (as
defined in the U.S. Underwriting Agreement);
(vii) the prospectus (the "Singapore Prospectus" and together with
the U.S. Prospectus and the International Prospectus, the
"Prospectus") dated [28th] January, 2000 incorporating the
International Prospectus and relating to the Singapore Retail
Offering;
(viii) the Registration Statement;
(ix) the Company's Registration Statement on Form F-6 (the "ADR
Registration Statement"1) filed with the United States
Securities and Exchange Commission;
(x) certified true copies of the Memorandum and Articles of
Association of the Company and its Certificate of
Incorporation;
(xi) resolutions, and certified extracts of resolutions, of the
Board of Directors of the Company ("Board Resolutions") and of
the shareholders of the Company ("Shareholders' Resolutions")
passed since the date of incorporation of the Company up to [
], 2000, relating to, inter alia, the authorisation for the
issue of, and the allotment and issue of, shares in the
capital of the Company and the Offering which were provided to
us for inspection by the Company;
(xii) a copy of the letter from the Stock Exchange of Singapore
Limited ("SES") dated 30th September, 1999 granting approval
in principle for the listing of and quotation for the entire
issued share capital of the Company on the Main Board of the
SES (the "AIP Letter"); and
(xiii) such other documents as we have considered necessary or
desirable to examine in order that we may render this opinion.
3. We have assumed:-
(i) that each of the U.S. Underwriting Agreement, the
International Underwriting Agreement and the Deposit Agreement
(together the "Transaction Agreements") is within the capacity
and powers of, and has been validly authorised by, each party
thereto (other than the Company) and has been validly executed
and delivered by and on behalf of each party thereto;
(ii) the genuineness of all signatures on all documents and the
completeness, and the conformity to original documents, of all
copies submitted to us;
(iii) that copies of the Memorandum and Articles of Association and
the Certificate of Incorporation of the Company submitted to
us for examination are true, complete and up-to-date copies;
(iv) that copies of the Board Resolutions and the Shareholders'
Resolutions submitted to us for examination are true, complete
and up-to-date copies;
38
3
(v) that the information disclosed by the search made on [8th]
February, 2000 at the Registry of Companies and Businesses in
the Republic of Singapore against the Company is true and
complete and that such information has not since then been
materially altered and that such search did not fail to
disclose any material information which has been delivered for
filing but did not appear on the public file at the time of
the search;
(vi) that the information disclosed by the search made on [8th]
February, 2000 of the Cause Book kept at the Supreme Court of
the Republic of Singapore against the Company is true and
complete and that such information has not since then been
materially altered and that such search did not fail to
disclose any material information which has been delivered for
filing but was not disclosed at the time of the search;
(vii) that each of the Transaction Agreements constitutes legal,
valid, binding and enforceable obligations of the parties
thereto for all purposes under the laws of all relevant
jurisdictions other than the Republic of Singapore;
(viii) that there are no provisions of the laws of any jurisdiction
other than the Republic of Singapore which may be contravened
by the execution or delivery of any of the Transaction
Agreements and that, insofar as any obligation expressed to be
incurred or performed under any of the Transaction Agreements
falls to be performed in or is otherwise subject to the laws
of any jurisdiction other than the Republic of Singapore, its
performance will not be illegal by virtue of the laws of that
jurisdiction;
(ix) that the choice of New York law as the governing law of each
of the Transaction Agreements has been made in good faith and
will be regarded as a valid and binding selection which will
be upheld in the United States federal or state courts in the
State of New York as a matter of New York law and all other
relevant laws except the laws of the Republic of Singapore;
(x) that all consents, approvals, authorisations, licences,
exemptions or orders required from any governmental body or
agency outside the Republic of Singapore and all other
requirements outside the Republic of Singapore for the
legality, validity and enforceability of each of the
Transaction Agreements have been duly obtained or fulfilled
and are and will remain in full force and effect and that any
conditions to which they are subject have been satisfied;
(xi) that the Board Resolutions and the Shareholders' Resolutions
have not been rescinded or modified and they remain in full
force and effect and that no other resolution or other action
has been taken which may affect the validity of the Board
Resolutions or the Shareholders' Resolutions;
(xii) that the Offered Shares and the ADSs will be duly offered,
sold and delivered in accordance with the terms of the U.S.
Underwriting Agreement and the International Underwriting
Agreement; and
(xiii) that each of the Transaction Agreements and the Singapore
Underwriting Agreement has been executed and delivered, and
each Prospectus has been issued, in the form of the drafts we
have examined.
39
4
4. A search made on [8th] February, 2000 at the Registry of Companies and
Businesses in the Republic of Singapore and at the Supreme Court of the Republic
of Singapore revealed no order or resolution for the winding-up of the Company
and no notice of appointment of a receiver or judicial manager for the Company.
It should be noted that such a search is not capable of revealing whether or not
a winding-up petition has been presented. Notice of a winding-up order made or
resolution passed or a receiver or judicial manager appointed may not be filed
at the Registry of Companies and Businesses immediately.
5. We have received a Certificate (the "Certificate") dated [8th] February, 2000
from Mr [ ], a director of the Company, which certifies the matters referred
to in paragraphs [ ] below. In rendering our opinion in paragraphs [ ]
below, we have relied solely on the statements in the Certificate and we have
not ourselves reviewed or examined the corporate secretarial records and
documents of the Company for the purposes of giving such opinion. Nothing has
come to our attention which gives us any reason to believe that the statements
in the Certificate are, as at the date thereof, untrue, inaccurate or misleading
in any respect. We have made no independent investigation into any of the
matters set out in the Certificate and we have not ourselves checked the
accuracy or completeness of, or otherwise verified, the matters set out in the
Certificate.
6. Based upon and subject to the foregoing, and subject to the qualifications
set forth below and any matters not disclosed to us, we are of the opinion
that:-
(i) the Company is a company incorporated and 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 Prospectus;
(ii) (a) 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 U.S.
Underwriting Agreement, the International
Underwriting Agreement and the Singapore 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 Deposit Agreement
and, assuming due authorisation, execution and
delivery thereof by the Depositary (as defined in the
U.S. Underwriting Agreement), the Deposit Agreement
constitutes a valid and legally binding agreement of
the Company, enforceable in accordance with its
terms;
(iii) the authorised share capital of the Company as at [ ], 2000
conforms as to legal matters to the description thereof set
out on page [ ] of the Prospectus;
(iv) (a) as of [ ], 2000, the [ ] Ordinary Shares issued and
outstanding prior to the issuance of the Offered
Shares in connection with the Offering have been duly
authorised 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
40
5
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
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 holder of any of the [ ] Ordinary Shares issued
and outstanding prior to the issuance of the Offered
Shares in connection with the Offering are entitled
to any pre-emptive or other rights to subscribe for
any of such Ordinary Shares; and
(c) except as described in the Prospectus under the
caption "Management - Employee Benefit Plans", 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;
(v) the Offered Shares to be issued in connection with the
Offering have been duly authorised by the Company and, when
issued and delivered to and paid for by the U.S. Underwriters
in accordance with the terms of the U.S. Underwriting
Agreement, by the International Underwriters in accordance
with the terms of the International Underwriting Agreement and
by the Managers pursuant to the Singapore Underwriting
Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Offered Shares 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;
there are no restrictions on the transfer of the Offered
Shares under the laws of the Republic of Singapore except as
described under the captions "Description of Share Capital -
Transfer of Ordinary Shares" and "Description of American
Depository Shares - Withdrawal of Ordinary Shares Upon
Cancellation of ADSs" in the Prospectus;
(vi) the capital restructuring exercise undertaken by the Company
and as described under the captions "Capitalization" and
"Management - Employee Benefit Plans" in the Prospectus was
approved by the Company at the Extraordinary General Meeting
of the Company held on 9th November, 1999 and has become
effective and has been completed. The Articles of Association
of the Company referred to in the Prospectus under the caption
"Description of Ordinary Shares" were adopted by the Company
at the Extraordinary General Meeting of the Company held on
19th January, 2000 and are effective;
(vii) as at the date hereof:-
(a) we are not representing the Company in any legal or
governmental proceedings, pending or threatened, to
which the Company is a party or to which any of the
properties of the
41
6
Company is subject which could reasonably be expected
to have a material adverse effect on the performance
of the Transaction Agreements or the Singapore
Underwriting Agreement or the consummation of any
transactions contemplated therein 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; and
(b) we are not aware of the existence of any legal or
governmental proceedings in the Republic of Singapore
to which the Company is a party or to which any of
the properties of the Company is subject;
(viii) 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 transactions contemplated
in the Transaction Agreements and the Singapore Underwriting
Agreement, except as may be required pursuant to the Companies
Act, Chapter 50 of the Republic of Singapore, the Listing
Manual of the SES or the AIP Letter and as have been obtained;
(ix) 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 the Republic of Singapore, without the necessity of
obtaining any consents, approvals, authorisations, 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 Prospectus under the caption "Taxation -
Singapore Tax Considerations", all dividends paid to holders
of Ordinary Shares who are non-residents of the Republic of
Singapore will not be subject to Singapore income, withholding
or other taxes under the laws of the Republic of Singapore;
(x) the consummation of any of the transactions contemplated in
the Transaction Agreements and the Singapore Underwriting
Agreement (including the issuance and sale of the Offered
Shares in connection with the Offering) (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) any agreement or instrument binding on the
Company 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;
(xi) it is not necessary, in order to ensure the legality,
validity, enforceability or admissibility in evidence of the
Transaction Agreements and the Singapore Underwriting
Agreement, that they be filed or recorded with any
governmental or other regulatory authorities in the Republic
of Singapore or that any Singapore stamp duty be paid on them;
42
7
(xii) 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
but excluding tax on the overall net income of the relevant
person) are payable by or on behalf of the U.S. Underwriters,
the International Underwriters, the Managers 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 U.S. Underwriting Agreement, the
International Underwriting Agreement or the Singapore
Underwriting Agreement; (b) the issuance of the Offered Shares
in connection with the Offering; (c) the deposit of such
Offered Shares with the Depositary against issuance of ADRs
evidencing the ADSs to be sold to the U.S. Underwriters or the
International Underwriters; (d) the sale and delivery of the
ADSs to the U.S. Underwriters in the manner contemplated in
the U.S. Underwriting Agreement or to the International
Underwriters in the manner contemplated in the International
Underwriting Agreement or the sale and delivery of Offered
Shares to the Managers in the manner contemplated in the
Singapore Underwriting Agreement; or (e) except as disclosed
in the Prospectus under the caption "Taxation - Singapore Tax
Considerations", the resale and delivery of such ADSs by the
U.S. Underwriters or the International Underwriters, or the
resale and delivery of such Offered Shares by the Managers, in
the manner contemplated in the relevant Prospectus;
(xiii) the statements in the Prospectus indicated with asterisks in
Appendix A to this opinion under the captions "Exchange
Rates", "Dividend Policy", "Capitalization", "Business -
Enforcement of Civil Liabilities", "Description of Share
Capital" and "Taxation - Singapore Tax Considerations",
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
(including the tax consequences described in connection with
investment in the Ordinary Shares);
(xiv) the choice of New York law as the governing law of the
Transaction Agreements is a valid choice of law and will be
recognised and given effect to by the Singapore courts;
(xv) the submission by the Company to the jurisdiction of the New
York courts contained in the Transaction Agreements and the
appointment by the Company of the President for the time being
of Singapore Technologies Assembly and Test Services, Inc.
presently located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America 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 we are not aware of
any reason that the Singapore courts would not give effect to
such submission; and
(xvi) a final and conclusive judgement 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
which could be enforced by execution against the Company in
the jurisdiction of the relevant court and has not been stayed
43
8
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 judgement was not obtained by fraud;
(c) the enforcement of that judgement would not be
contrary to the public policy of the Republic of
Singapore;
(d) that judgement had not been obtained in contravention
of the principles of natural justice; and
(e) the judgement of the relevant court did not include
the payment of taxes, a fine or penalty;
(xvii) the SES has granted in-principle approval for the listing of
the Ordinary Shares on the SES, subject to the conditions set
out in the AIP Letter;
(xviii) none of the U.S. Underwriters or International Underwriters is
or will be deemed to be resident, domiciled, carrying on
business or subject to taxation in the Republic of Singapore
by reason only of the entry into, performance or enforcement
of the U.S. Underwriting Agreement and International
Underwriting Agreement respectively; and
(xix) the Company is not entitled to claim immunity from suit,
execution, attachment or legal process in any proceedings
taken in the Republic of Singapore in relation to the
Transaction Agreements or the Singapore Underwriting
Agreement.
7. 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
Agreements, the Singapore Underwriting Agreement, the Prospectus, the
Registration Statement and the ADR 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 Shearman & Sterling,
United States counsel for the Company, delivered pursuant to (i) Section [6(c)]
of the U.S. Underwriting Agreement and (ii) Section [6(c)] of the International
Underwriting Agreement. As to matters of fact material to this opinion, we have
relied on the statements of responsible officers of the Company.
8. The qualifications to which this opinion is subject are as follows:-
(i) enforcement of the obligations of the Company under the
Transaction Agreements or the Singapore Underwriting Agreement
may be affected
44
9
by prescription or lapse of time, bankruptcy, insolvency,
liquidation, reorganization, reconstruction or similar laws
generally affecting creditors' rights;
(ii) the power of the Singapore courts to grant equitable remedies
such as injunction and specific performance is discretionary
and accordingly a Singapore court may make an award of damages
where an equitable remedy is sought;
(iii) where under any of the Transaction Agreements or the Singapore
Underwriting Agreement, any person is vested with a discretion
or may determine a matter in its opinion, Singapore law may
require that such discretion is exercised reasonably or that
such opinion is based upon reasonable grounds;
(iv) by virtue of the Limitation Act, Chapter 163 of the Republic
of Singapore, failure to exercise a right of action for more
than six years will operate as a bar to the exercise of such
right and failure to exercise such a right for a lesser period
may result in such right being waived;
(v) a Singapore court may stay proceedings if concurrent
proceedings are brought elsewhere;
(vi) where obligations are to be performed in a jurisdiction
outside the Republic of Singapore, they may not be enforceable
in the Republic of Singapore to the extent that performance
would be illegal or contrary to public policy under the laws
of that jurisdiction;
(vii) provisions in each of the Transaction Agreements or the
Singapore Underwriting Agreement as to severability may not be
binding under the laws of the Republic of Singapore and the
question of whether or not provisions which are illegal,
invalid or unenforceable may be severed from other provisions
in order to save such other provisions depends on the nature
of the illegality, invalidity or unenforceability in question
and would be determined by a Singapore court at its
discretion;
(viii) a Singapore court may refuse to give effect to clauses in any
of the Transaction Agreements or the Singapore Underwriting
Agreement in respect of the costs of unsuccessful litigation
brought before a Singapore court or where the court has itself
made an order for costs;
(ix) we express no opinion as to events and conditions which might
violate covenants, restrictions or provisions with respect to
financial ratios or tests or any contractual provision
measured by the financial conditions or results of operation
of the Company or any of its subsidiaries;
(x) we express no opinion on the legality or enforceability of the
performance by the Company of its obligations of
indemnification or contribution set forth in Section [9] of
the U.S. Underwriting Agreement or Section [9] of the
International Underwriting Agreement;
(xi) any term of an agreement may be amended orally by all the
parties notwithstanding provisions to the contrary in the
Transaction Agreements or the Singapore Underwriting
Agreement;
45
10
(xii) this opinion is given on the basis that there will be no
amendment to or termination or replacement of the documents,
authorisations and approvals referred to in paragraph 2 of
this opinion and on the basis of the laws of the Republic of
Singapore in force as at the date of this opinion. This
opinion is also given on the basis that we undertake no
responsibility to notify any addressee of this opinion of any
change in the laws of the Republic of Singapore after the date
of this opinion; and
(xiii) under general principles of Singapore law, a person who is not
a contracting party to an agreement is not entitled to the
benefit of the agreement and may not enforce the agreement.
9. As the primary purpose of our professional engagement was not to establish or
confirm factual matters or financial, accounting or statistical matters and
because of the wholly or partially non-legal character of many of the statements
contained in the Prospectus, we express no opinion or belief on and do not
assume any responsibility for the accuracy, completeness or fairness of any of
the statements contained in the Prospectus (other than those specifically
referred to in paragraph 7 of this opinion) and we make no representation that
we have independently verified the accuracy, completeness or fairness of such
statements. Without limiting the foregoing, we express no belief and assume no
responsibility for, and have not independently verified the accuracy,
completeness or fairness of the financial statements and schedules and other
financial and statistical data included or incorporated in the Prospectus, and
we have not examined the accounting, financial or statistical records from which
such financial statements, schedules and data are derived.
10. This opinion is rendered by us solely for the benefit of the U.S.
Underwriters and the International Underwriters in their capacity as
underwriters in connection with the transactions referred to in the U.S.
Underwriting Agreement or, as the case may be, the International Underwriting
Agreement. This opinion is strictly limited to the matters stated herein and is
not to be read as extending by implication to any other matter in connection
with any of the Transaction Agreements or otherwise including, but without
limitation, any other document signed in connection with any of the Transaction
Agreements. Further, this opinion is not to be circulated to, or relied upon by,
any other person or quoted or referred to in any public document or filed with
any governmental body or agency without our prior written consent.
Yours faithfully,
46
11
EXHIBIT A
[to come]
47
12
APPENDIX A
[to come]
48
13
APPENDIX B
(▇▇) ▇▇▇-▇▇▇▇
[ ], 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇ Securities Corporation
As U.S. Representatives of the several
U.S. Underwriters listed in Schedule "A"
to the U.S. Underwriting Agreement
Salomon Brothers International Limited
Credit Suisse First Boston (Singapore) Limited
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
Societe Generale
As International Representatives of the several
International Underwriters listed in Schedule "A"
to the International Underwriting Agreement
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ST Assembly Test Services Ltd
Ladies and Gentlemen :
We are acting as U.S. counsel for ST Assembly Test Services Ltd, a
company incorporated with limited liability under the laws of the Republic of
Singapore (the "Company"), in connection with a global offering of 170,000,000
Ordinary Shares, S$0.25 par value each, of the Company (the "Shares"), either
directly or in the form of American Depositary Shares ("ADSs"), each ADS
representing [ten] Shares, pursuant to (i) the U.S. Underwriting Agreement,
dated January [ ], 2000 (the "U.S. Underwriting Agreement"), among the Company
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC and ▇▇ ▇▇▇▇▇ Securities
Corporation, as U.S. Representatives of the several U.S. Underwriters listed in
Schedule "A" thereto (the "U.S. Underwriters"), (ii) the International
Underwriting Agreement, dated January [ ], 2000 (the "International Underwriting
Agreement") among the Company and [ ], as International Representatives of the
several International Underwriters listed in Schedule "A" thereto (the
"International Underwriters"), and (iii) the Singapore Underwriting Agreement,
dated January [ ], 2000 (together with the U.S. Underwriting Agreement and the
International Underwriting Agreement, the "Underwriting Agreements") among the
Company and [ ], as Singapore Representatives of the several Singapore
Underwriters listed in Schedule "A" thereto (together with the U.S. Underwriters
and the International Underwriters, the "Underwriters").
In this capacity, we have examined a signed copy of the registration
statement on Form F-1 (File No. 333-93661), filed by the Company under the
United States Securities Act of 1933, as amended (the "Securities Act"), with
the United States Securities and Exchange Commission (the "Commission") on [ ],
[ ], and of Amendment No. 1 thereto filed by the Company with the Commission
dated [ ], [ ], and of
49
14
Amendment No. 2 thereto filed by the Company with the Commission on [ ], [ ]
and copies of the related U.S. prospectus and international prospectus (the
registration statement as amended at the time it became effective, including the
exhibits thereto, being hereinafter referred to as the "Share Registration
Statement", and the final U.S. Prospectus dated [ ], [ ] in the form
delivered to the U.S. Underwriters (the "U.S. Prospectus"), and the final
International Prospectus dated [ ], [ ] in the form delivered to the
International Underwriters (the "International Prospectus"), being hereinafter
referred to collectively as the "Prospectuses").
We have also examined a signed copy of the registration statement on Form
F-6 (File No. 333-505544), filed by Citibank, N.A. under the Securities Act with
the Commission on [ ], [ ], and of Amendment No. 1 thereto filed with the
Commission dated [ ], [ ], and of Amendment No. 2 thereto filed with the
Commission on [ ], [ ](such registration statement on Form F-6 at the time
when it became effective, including the exhibits thereto, being hereinafter
referred to as the "ADS Registration Statement" and, together with the Share
Registration Statement, being hereinafter referred to as the "Registration
Statements").
We have also reviewed and participated in discussions concerning the
preparation of the Registration Statements and the Prospectuses with certain
directors, officers and employees of the Company, with ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
Singapore counsel to the Company, with KPMG, independent auditors of the
Company, and with representatives of the Underwriters. The limitations inherent
in the independent verification of factual matters and in the role of outside
counsel are such, however, that we cannot and do not assume any responsibility
for the accuracy, completeness and fairness of any of the statements made in the
Registration Statements or the Prospectuses, except as set forth in paragraph
(vii) of our opinion addressed to you, dated the date hereof.
Subject to the limitations set forth in the immediately preceding
paragraph, we advise you that, on the basis of the information we gained in the
course of performing the services referred to above, (A) in our opinion, each of
the Registration Statements, the U.S. Prospectus and the International
Prospectus (other than the financial statements and financial data included
therein or omitted therefrom, as to which we express no view) appear on their
face to be appropriately responsive in all material respects to the requirements
of the Securities Act or the Exchange Act, as the case may be, and the
applicable rules and regulations of the Commission thereunder, and there are no
contracts or other documents known to us after reasonable investigation that are
required to be filed as exhibits to any of the Registration Statements that have
not been so filed, and (B) no facts came to our attention which gave us reason
to believe that (a) any of the Registration Statements (other than the financial
statements and financial data included therein or omitted therefrom, as to which
we express our view), at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading or (b) either of the U.S. Prospectus or International Prospectus
(other than the financial statements and financial data included therein or
omitted therefrom, as to which we express no view), as of its date or the date
hereof, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Very truly yours,
50
16
[ ], 2000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇ Securities Corporation
As U.S. Representatives of the several
U.S. Underwriters listed in Schedule "A"
to the U.S. Underwriting Agreement
Salomon Brothers International Limited
Credit Suisse First Boston (Singapore) Limited
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
Societe Generale
As International Representatives of the several
International Underwriters listed in Schedule "A"
to the International Underwriting Agreement
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ST Assembly Test Services Ltd
Ladies and Gentlemen :
We are acting as U.S. counsel for ST Assembly Test Services Ltd, a
company incorporated with limited liability under the laws of the Republic of
Singapore (the "Company"), in connection with a global offering of [ ] Ordinary
Shares, S$[ ] par value each, of the Company (the "Shares"), either directly or
in the form of Americal Depositary Shares ("ADSs"), each ADS representing [ ]
Shares, including the offering of [ ] Shares, either directly or in the form of
ADSs, pursuant to (i) the U.S. Underwriting Agreement, dated January [ ], 2000
(the "U.S. Underwriting Agreement"), among the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc., ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC and ▇▇ ▇▇▇▇▇ Securities Corporation, as U.S.
Representatives of the several U.S. Underwriters listed in Schedule "A" thereto
(the "U.S. UNDERWRITERS"), (ii) the International Underwriting Agreement, dated
January [ ], 2000 (the "International Underwriting Agreement") among the Company
and [ ], as International Representatives of the several International
Underwriters listed in Schedule "A" thereto (the "International Underwriters"),
and (iii) the Singapore Underwriting Agreement, dated January [ ], 2000 (the
"Singapore Underwriting Agreement", and, together with the U.S. Underwriting
Agreement and the International Underwriting Agreement, the "Underwriting
Agreements") among the Company and [ ], as Singapore Representatives of the
several Singapore Underwriters listed in Schedule "A" thereto (the "Singapore
Underwriters", and, together with the U.S. Underwriters and the International
Underwriters, the "Underwriters").
In this capacity, we have examined a signed copy of the registration
statement on Form F-1 (File No. 333-[ ]), filed by the Company under the United
States Securities Act of 1933, as amended (the "Securities Act"), with the
United States Securities and
51
17
Exchange Commission (the "Commission") on [ ], [ ], and of
Amendment No. 1 thereto filed by the Company with the Commission dated [ ],
[ ], and of Amendment No. 2 thereto filed by the Company with the
Commission on [ ], [ ] and copies of the related U.S. prospectus
and international prospectus (the registration statement as amended at the time
it became effective, including the
exhibits thereto, being hereinafter referred to as the "Share Registration
Statement", and the final U.S. Prospectus dated [ ], [ ] in the form
delivered to the U.S. Underwriters (the "U.S. Prospectus"), and the final
International Prospectus dated [ ], [ ] in the form delivered to the
International Underwriters (the "International Prospectus"), being hereinafter
referred to collectively as the "Prospectuses").
We have also examined a signed copy of the registration statement on Form
F-6 (File No. 333-[ ]), filed by Citibank, N.A. under the Securities Act
with the Commission on [ ], [ ], and of Amendment No. 1 thereto filed
with the Commission dated [ ], [ ], and of Amendment No. 2 thereto
filed with the Commission on [ ], [ ](such registration statement on
Form F-6 at the time when it became effective, including the exhibits thereto,
being hereinafter referred to as the "ADS Registration Statement"). We have also
examined a signed copy of the registration statement on Form 8-A, filed by the
Company under the United States Securities Exchange Act of 1934, as amended (the
"Exchange Act"), with the Commission on [ ], [ ](such registration
statement on Form 8-A at the time when it became effective, including the
exhibits thereto, being hereinafter referred to as the "Form 8-A Registration
Statement", and, together with the Share Registration Statement and the ADS
Registration Statement, the "Registration Statements").
A member of the Staff of the Commission advised us orally that the Share
Registration Statement and the ADS Registration Statement became effective under
the Securities Act at [ ] PM, New York City time, on [ ], [ ].
On [ ], [ ], a member of the Staff of the Commission advised us
orally that there was no stop order suspending the effectiveness of any of the
Registration Statements. To our knowledge since that date no stop order
suspending the effectiveness of any of the Registration Statements has been
issued under the Securities Act or the Exchange Act, as the case may be, or
proceedings therefor initiated or threatened by the Commission.
We have also examined the Deposit Agreement, dated as of [ ], [ ]
(the "Deposit Agreement"), among the Company, Citibank, N.A., as depositary (the
"Depositary"), and the owners and beneficial owners from time to time of
American Depositary Receipts ("ADRs") thereunder, as well as originals, or
copies identified to our satisfaction, of such corporate records of the Company,
certificates of officers of the Company and other persons, and such other
documents, agreements and instruments as we have deemed necessary as a basis for
the opinions hereinafter expressed. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity of originals of all documents submitted to us as
copies.
Our opinions set forth below are limited to the laws of the State of New
York and the Federal securities laws of the United States, and we do not express
any opinions herein concerning any other laws. In addition, we have not been
requested to express, and do not express, any opinion with respect to whether
the Deposit Agreement constitutes a valid and legally binding agreement by
owners and beneficial owners from time to time of ADRs.
Based upon and subject to the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that:
52
18
(i) assuming due authorization, execution and delivery
thereof by the Company under the laws of Singapore, each of the
Underwriting Agreements have been duly executed and delivered by
the Company under the laws of New York;
(ii) the Company is not, and after giving effect to the
transactions contemplated by the Underwriting Agreements and the
Deposit Agreement will not become, an "investment company"within
the meaning of the Investment Company Act of 1940;
(iii) assuming due authorization, execution and delivery
thereof by the Company under the laws of Singapore, the Deposit
Agreement has been duly executed and delivered by the Company under
the laws of New York and assuming further the due authorization,
execution and delivery of the Deposit Agreement by the Depositary,
the Deposit Agreement constitutes a valid and legally binding
agreement of the Company (other than Section [5.8] thereof as to
which we do not express any opinion), enforceable in accordance
with its 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 to general principles of equity (regardless of whether in a
proceeding in equity or at law).
(iv) assuming due authorization, execution and delivery of
the Deposit Agreement by the Depositary and the Company, upon due
issuance by the Depositary of the ADRs evidencing the ADSs being
delivered by the Company at the Closing Date against the deposit of
the Underlying Shares by the Company in respect thereof in
accordance with the provisions of the Deposit Agreement, such ADRs
have been duly and validly issued and the persons in whose names
such ADRs are registered are entitled to the rights specified
therein and in the Deposit Agreement; the ADSs and ADRs in respect
thereof conform in all material respects to the descriptions
thereof in the Prospectuses, insofar as such statements purport to
summarize certain provisions of the Deposit Agreement;
(v) no consent, approval, authorization or order of any court
or governmental agency or body of the United States or of the State
of New York is required for the consummation by the Company of the
transaction contemplated in the Underwriting Agreements or the
Deposit Agreement, except (A) the registration under the Securities
Act of the Shares and the ADSs and the registration under the
Exchange Act of the ADSs, and (B) any other consents, approvals,
authorizations or orders as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and
distribution of the Shares and the ADSs to be purchased under the
Underwriting Agreements;
(vi) the deposit of the Shares being deposited with the
Depositary or its nominee against the issuance of the ADRs
evidencing the ADSs to be delivered at the Closing Date, the sale
and delivery by the Company of the Shares to be delivered at the
Closing Date, the consummation of the transactions contemplated by
the Underwriting Agreements or the Deposit Agreement and the
fulfilment of the terms thereof will not conflict with, result in a
breach or violation of, or constitute a default
53
19
under, (A) any law of the United States or the State of New York
and (B) any judgment or decree know to us to be applicable to the
Company of any court, regulatory body, administrative agency,
governmental body or arbitrator of the United States or the State
of New York having jurisdiction over the Company;
(vii) the information contained in the Prospectuses under the
headings "Taxation" and "Shares Eligible for Future Sale", insofar
as it purports to summarize the provisions of federal laws of the
United States or the laws of the State of New York, is true and
accurate in all material respects and fairly summarizes the
material federal income tax considerations to an investment on the
Ordinary Shares directly or in the form of ADSs and the other
matters therein;
(viii)the choice of law provision set forth in Section 15
hereof and in the Deposit Agreement will be recognized by the New
York Courts provided, however, that we express no opinion as to
whether any United States federal court will accept venue of an
action which it may affirmatively determine not to accept as
inconvenient or otherwise inappropriate;
This opinion is being furnished to you solely for your benefit in
connection with the transactions contemplated by the Underwriting Agreements and
the Deposit Agreement, and is not to be used, circulated, quoted or otherwise
referred to for any other purpose without our express written consent, and no
party other than you is entitled to rely on it. Notwithstanding the foregoing
sentence, the Depositary may rely on our opinion in paragraph (iii) as if such
opinion were addressed to it.
Very truly yours
54
Appendix C
FORM OF OPINION OF SKADDEN, ARPS, SLATE, ▇▇▇▇▇▇▇ & ▇▇▇▇ L.L.P.
[date]
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇ Securities Corporation
As U.S. Representatives of the several U.S. Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Salomon Brothers International Limited
Credit Suisse First Boston (Singapore) Limited
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC
Societe Generale
As International Representatives of the several International Underwriters
c/o
Salomon Brothers International Limited
Victoria Plaza
111 Buckingham Palace Road
London SWIW OSB
England
Re: American Depositary Shares
Each Representing Ten (10) Ordinary Shares of
ST Assembly Test Services Ltd
Ladies and Gentlemen:
We have acted as special United States counsel for Citibank, N.A. in
connection with the Deposit Agreement, dated as of February [8], 2000 (the
"Deposit Agreement"), by and among ST Assembly Test Services Ltd, a company
incorporated under the laws of the Republic of Singapore (the "Company"),
Citibank, N.A., as depositary (the "Depositary"), and Holders and Beneficial
Owners of American Depositary Shares (the "ADSs") evidenced by American
Depositary Receipts (the "ADRs"), --each ADS representing ten (10) ordinary
shares, par value S$0.25 per share, of the Company (the "Shares").
This opinion is being furnished to you pursuant to Section 6(d) of the
U.S. Underwriting Agreement, dated January [27], 2000 among the Company and the
U.S. Underwriters named therein (the "Underwriting Agreement"). Capitalized
terms used and not otherwise defined herein shall have the respective meanings
set forth in the Underwriting Agreement.
We have examined originals or copies of (i) the final Prospectuses, each
dated -, 2000, relating to the ADSs (the "Prospectuses"), (ii) the registration
statement with respect to the ADSs on Form F-6 under the Securities Act of 1933,
as amended (the "Act"), filed on January 11, 2000 (the "ADS Registration
Statement"), (iii) an executed copy of the Deposit Agreement,
55
2
(iv) specimen certificates of the ADRs evidencing the ADSs, (v) the Depositary's
Certificate, dated -, 2000 and (vi) a certified copy of the Charter and By-Laws
of the Depositary as in effect on the date hereof. We have also examined
originals or copies, certified or otherwise identified to our satisfaction, of
such other documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed by parties other than the Depositary, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof. As to
any facts material to the opinions expressed herein which were not
independently established or verified, we have relied upon oral or written
statements and representations of officers and other representatives of the
Depositary and others.
Members of our firm are admitted to the bar in the State of New York, and
we do not express any opinion as to the laws of any other jurisdiction (or as to
the effect of the laws of any such jurisdiction on the opinions herein stated)
other than the federal laws of the United States of America to the extent
referred to specifically herein. We have assumed the accuracy, correct-ness and
validity of all matters relating to or dependent upon the laws of the Republic
of Singapore, including, but not limited to, (i) the due authorization,
execution and delivery of the Deposit Agreement by the Company under the laws of
the Republic of Singapore, (ii) the due execution and delivery under the laws of
the Republic of Singapore by the Depositary of the Deposit Agreement and the
validity and legality thereof under the laws of the Republic of Singapore, (iii)
that, under the laws of the Republic of Singapore, the Shares have been duly
authorized, executed and delivered by the Company and are validly issued, fully
paid and non-assessable, and the holders of the Shares - will be entitled to all
the rights of a shareholder conferred by the Memorandum and Articles of
Association of the Company and the Companies Act of the Republic of Singapore,
and (iv) that, under the laws of the Republic of Singapore, upon due issuance
and delivery by the Depositary of the ADRs evidencing the ADSs against the
deposit of the Shares in accordance with the terms of the Deposit Agreement,
such ADRs will be validly issued and will entitle the persons in whose name each
ADR is registered to the rights specified therein and in the Deposit Agreement.
Based upon the foregoing and subject to the limitations, qualifications,
exceptions and assumptions set forth herein, we are of the opinion 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);
(ii) the statements in the Prospectuses under the heading "Description of
American Depositary Receipts", insofar as such statements purport to summarize
certain provisions of the Deposit Agreement, the ADSs and the ADRs, are fair and
accurate;
(iii) the Depositary has full power and authority and legal right to
execute and deliver the Deposit Agreement and to perform its obligations
thereunder;
(iv) upon due issuance and delivery by the Depositary of the ADRs
evidencing the ADSs against the deposit of the Shares in accordance with the
terms of the Deposit Agreement, such ADRs will be validly issued and will
entitle the person in whose name each ADR is registered to the rights specified
therein and in the Deposit Agreement; and
56
3
(v) the ADS Registration Statement and each amendment comply as to form
in all material respects with the applicable requirements of the Act and the
rules thereunder.
We have been advised by the U.S. Securities and Exchange Commission that
the ADS Registration Statement has become effective under the Act. To our
knowledge, no stop order suspending the effectiveness of the ADS Registration
Statement has been issued and no proceedings for that purpose have been
instituted or threatened.
This opinion is furnished to you for your benefit in connection with the
execution and delivery of the Deposit Agreement and is not to be used,
circulated, quoted or otherwise referred to for any other purpose without our
express written permission.
Very truly yours,
