<PAGE> 1
United States
Securities and Exchange Commission
Washington, D.C. 20549
Form 6-K
Report of Foreign Private Issuer Pursuant
to Rule 13a-16 or 15d-16 of the Securities Exchange Act of 1934
For the quarter ended September 30, 1999
Commission File Number 000-27811
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
(Exact name of registrant as specified in its charter)
Not Applicable
(Translation of registrant's name into English)
Republic of Singapore
(Jurisdiction of incorporation or organization)
60 Woodlands Industrial Park D
Street 2, Singapore 738406
(65) 362-2838
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports
under cover Form 20-F or Form 40-F.
Form 20-F [X] Form 40-F [ ]
Indicate by check mark whether the registrant by furnishing the information
contained in this Form is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes [ ] No [X]
If "Yes" is marked, indicate below the file number assigned to registrant in
connection with Rule 12g3-2(b). Not applicable.
<PAGE> 2
CURRENCY OF PRESENTATION AND CERTAIN DEFINED TERMS
Unless the context otherwise requires, references herein to "we," "us,"
the "company" or "Chartered" are to Chartered Semiconductor Manufacturing Ltd, a
company organized under the laws of the Republic of Singapore.
In this Quarterly Report on Form 6-K ("Quarterly Report"), all
references to "$" are to the legal currency of the United States. References to
a particular "fiscal" year are to our fiscal year ended December 31 of that
year.
Our financial statements are presented in accordance with United States
generally accepted accounting principals ("U.S. GAAP"). In this Quarterly
Report, any discrepancies in any table between totals and the sums of the
amounts listed are due to rounding.
FORWARD-LOOKING STATEMENTS MAY PROVE INACCURATE
IN ADDITION TO HISTORICAL INFORMATION, FORWARD-LOOKING STATEMENTS WITHIN
THE MEANING OF SECTION 27A OF THE SECURITIES ACT OF 1933, AS AMENDED, AND
SECTION 21E OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, ARE INCLUDED IN
THIS QUARTERLY REPORT, INCLUDING WITHOUT LIMITATION THE SECTION CAPTIONED
"MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATION -- YEAR 2000 READINESS." THE FORWARD-LOOKING STATEMENTS CONTAINED
HEREIN ARE SUBJECT TO CERTAIN RISKS AND UNCERTAINTIES THAT COULD CAUSE ACTUAL
RESULTS TO DIFFER MATERIALLY FROM THOSE REFLECTED IN THE FORWARD-LOOKING
STATEMENTS. FACTORS THAT MIGHT CAUSE SUCH A DIFFERENCE INCLUDE, BUT ARE NOT
LIMITED TO, THOSE DISCUSSED IN SUCH SECTION AND THOSE OUTLINED IN THE SECTION
CAPTIONED "RISK FACTORS" IN OUR PROSPECTUS DATED OCTOBER 29, 1999. YOU ARE
CAUTIONED NOT TO PLACE UNDUE RELIANCE ON THESE FORWARD-LOOKING STATEMENTS, WHICH
REFLECT MANAGEMENT'S ANALYSIS ONLY AS OF THE DATE HEREOF. IN ADDITION, YOU
SHOULD CAREFULLY REVIEW THE OTHER INFORMATION IN THIS QUARTERLY REPORT AND IN
OUR PERIODIC REPORTS AND OTHER DOCUMENTS FILED WITH THE UNITED STATES SECURITIES
AND EXCHANGE COMMISSION FROM TIME TO TIME.
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
CONSOLIDATED STATEMENTS OF OPERATIONS
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<PAGE> 3
(In thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1999 1998 1999 1998
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Net revenue 183,287 83,882 478,025 316,653
Cost of revenue (134,917) (103,200) (382,174) (327,305)
---------- ---------- ---------- ----------
Gross profit (loss) 48,370 (19,318) 95,851 (10,652)
Operating Expenses:
Research and development 13,506 13,282 36,461 33,924
Fab start-up costs -- -- -- 1,455
Sales and marketing 9,169 8,812 29,737 22,421
General and administrative 9,775 7,777 32,476 22,867
Costs incurred on termination of
development program -- -- 6,500 --
Stock-based compensation 8,849 (724) 12,138 (2,057)
---------- ---------- ---------- ----------
Total operating expenses 41,299 29,147 117,312 78,610
---------- ---------- ---------- ----------
Operating income (loss) 7,071 (48,465) (21,461) (89,262)
Equity in loss of CSP and SMP (10,238) (7,418) (28,226) (14,247)
Other income 148 1,902 798 2,232
Interest income 474 141 1,681 951
Interest expense (4,531) (5,289) (13,625) (15,389)
Exchange gain (loss) 1,116 6,617 6,181 3,478
---------- ---------- ---------- ----------
Income (loss) before income taxes (5,960) (52,513) (54,652) (112,237)
Income tax (expense) benefit (211) (77) (39) (620)
---------- ---------- ---------- ----------
Net income (loss) (6,171) (52,590) (54,691) (112,857)
Other comprehensive income (loss) -- -- -- (8,794)
========== ========== ========== ==========
Comprehensive income (loss) (6,171) (52,590) (54,691) (121,651)
========== ========== ========== ==========
Net income (loss) per share and ADS:
Basic net income (loss) per share (0.01) (0.07) (0.06) (0.16)
Diluted net income (loss) per share (0.01) (0.07) (0.06) (0.16)
Basic net income (loss) per ADS (0.06) (0.67) (0.55) (1.57)
Diluted net income (loss) per ADS (0.06) (0.67) (0.55) (1.57)
Number of shares (in thousands) used
In computing:
Basic net income (loss) per share 987,217 781,876 986,102 717,251
Diluted net income (loss) per share 987,217 781,876 986,102 717,251
Number of shares (in thousands) used
In computing:
Basic net income (loss) per ADS 98,722 78,188 98,610 71,725
Diluted net income (loss) per ADS 98,722 78,188 98,610 71,725
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
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CONSOLIDATED BALANCE SHEETS
(In thousands, except per share data)
<TABLE>
<CAPTION>
As of
September 30, December 31,
1999 1998
---------- ----------
ASSETS (unaudited) (audited)
<S> <C> <C>
Cash and cash equivalents 17,066 99,619
Accounts receivable 95,603 83,988
Amounts due from ST, ST affiliates, CSP and SMP 14,859 9,254
Inventories 29,826 29,476
Prepared expenses 2,994 895
---------- ----------
Total current assets 160,348 223,232
---------- ----------
Investment in CSP and SMP 70,615 58,487
Other assets 61,685 57,821
Property, plant and equipment, net 948,224 981,970
========== ==========
Total Assets 1,240,872 1,321,510
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Accounts payable 51,549 31,359
Current installments of obligations under capital leases 5,150 4,329
Current installments of long-term debt 86,103 49,046
Bank overdrafts -- 3,082
Accrued operating expenses 87,329 84,918
Other current liabilities 43,480 37,399
---------- ----------
Total current liabilities 273,611 210,133
Obligations under capital leases, excluding current installments 10,698 13,414
Long-term debt, excluding current installments 320,636 419,545
Other liabilities 74,826 77,172
---------- ----------
Total liabilities 679,771 720,264
Share capital
Ordinary shares of S$0.26 each 221,970 221,433
Subscription receivable (11,842) (12,341)
Additional paid-in capital 706,868 689,970
Unearned compensation (3,388) --
Accumulated other comprehensive income (loss) (52,696) (52,696)
Retained deficit (299,811) (245,120)
---------- ----------
Total shareholders' equity 561,101 601,246
========== ==========
Total liabilities and shareholders' equity 1,240,872 1,321,510
========== ==========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
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CHARTERED SEMICONDUCTOR MANUFACTURING LTD
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
For The Nine Months Ended
September 30, September 30,
1999 1998
---------- ----------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss) (54,691) (112,856)
Adjustments to reconcile net income (loss) to net cash
provided by operating activities:
Equity in loss of CSP and SMP 28,226 14,247
Depreciation and amortization 206,577 163,155
Foreign exchange (gain) loss on financing activities (6,306) (1,623)
(Gain) loss on disposal of property, plant and
equipment 7,138 1,558
Stock-based compensation 12,138 (2,057)
Other (1,258) (296)
Changes in operating working capital:
Accounts receivable (15,771) 52,623
Amounts due from ST, ST affiliates, CSP and SMP (5605) (5,056)
Inventories (350) 28,498
Prepaid expenses (2,099) (696)
Trade accounts payable (3,418) (7,416)
Accrued operating expenses 2,411 (11,941)
Other current liabilities 6,197 36,088
---------- ----------
Net cash (used in) provided by operating activities: 172,870 154,228
---------- ----------
</TABLE>
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<TABLE>
<CAPTION>
For The Nine Months Ended
September 30, September 30,
1999 1998
---------- ----------
<S> <C> <C>
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sale of property, plant and equipment 12,097 297
Purchase of property, plant and equipment (157,864) (257,598)
Technology license fees paid (10,500) (4,500)
Investment in CSP and SMP (40,353) (62,779)
---------- ----------
Net cash used in investing activities (196,620) (324,580)
---------- ----------
CASH FLOWS FROM FINANCING ACTIVITIES
Bank overdrafts (3,082) (1,450)
Customer deposits, net (27,446) (33,714)
Loans from ST and ST affiliates
borrowings 69,650 295,339
repayments (69,650) (515,145)
Long term debt
borrowings 18,500 123,610
repayments (47,248) (8,993)
Issuance of shares by the Company 2,408 319,147
Capital lease payments (2,131) (2,012)
---------- ----------
Net cash provided by (used in) financing activities: (58,999) 176,782
---------- ----------
Net (decrease) increase in cash and cash equivalents (82,749) 6,430
Effect of exchange rate changes on cash and cash
equivalents 196 (10,837)
Cash at the beginning of the period 99,619 23,785
========== ==========
Cash at the end of the period 17,066 19,378
========== ==========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
6
<PAGE> 7
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
September 30, 1999
1. Business and Organization
Chartered Semiconductor Manufacturing Ltd currently owns or has an
interest in, five fabrication facilities, which are located in Singapore. Fabs
1, 2 and 3 are wholly-owned by the Company. Fab 5 is operated by Silicon
Manufacturing Partners, known as SMP, which is jointly-owned with a subsidiary
of Lucent Technologies Microelectronics Pte Ltd. Fab 6, known as Chartered
Silicon Partners, or CSP, is jointly-owned with an affiliate of the Government
of Singapore and a subsidiary of Hewlett-Packard Europe B.V. The Company
accounts for SMP and CSP on an equity investment basis.
Chartered was incorporated in Singapore in 1987. After giving effect to
our initial public offering of equity securities, including the sale of
over-allotment shares, the Company is 70.3% owned by Singapore Technologies Pte
Ltd ("ST") and its affiliates, which is indirectly wholly-owned by the
Government of Singapore.
2. Basis of Presentation
The information in this report for the three and nine months ended
September 30, 1999 and 1998 is unaudited but includes all adjustments
(consisting only of normal recurring accruals) which management considers
necessary for a fair presentation of the results of operations for those
periods. The results of operations for the three and nine months ended September
30, 1999 are not necessarily indicative of the results for the full fiscal year.
The accompanying unaudited consolidated financial statements do not
include footnotes and certain financial presentations normally required under
generally accepted accounting principles. Therefore, these financial statements
should be read in conjunction with the audited financial statements and notes
thereto for the year ended December 31, 1998, included in the Company's
Prospectus dated October 29, 1999, filed as part of a Registration Statement on
Form F-1, as amended (File No. 333-88397).
3. Net Income (Loss) Per Share
The computation of basic net income (loss) and diluted net income (loss)
per share are presented in conformity with Statement of Financial Accounting
Standards (SFAS) No. 128, "Earnings Per Share" for all periods presented. For
all the periods subsequent to 1996, the Company has excluded all outstanding
stock options from the calculation of diluted net income (loss) per share under
SFAS No. 128 because all such securities are anti-dilutive for those periods.
4. Comprehensive Income
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On January 1, 1998, the Company applied SFAS No. 130, "Reporting
Comprehensive Income" with respect to reporting and presentation of
comprehensive income and its components in a full set of financial statements.
Comprehensive income (loss) consists of net income (loss) and foreign currency
translation adjustments and is presented in the consolidated statements of
operations.
8
<PAGE> 9
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
RESULTS OF OPERATIONS
The following table sets forth certain operating data as a percentage of net
revenue for the periods indicated:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1999 1998 1999 1998
-------- -------- -------- --------
(as a percentage of net revenue)
<S> <C> <C> <C> <C>
Net revenue 100.0 100.0 100.0 100.0
Cost of revenue (73.6) (123.0) (79.9) (103.4)
-------- -------- -------- --------
Gross profit (loss) 26.4 (23.0) (20.1) (3.4)
Operating Expenses:
Research and development 7.4 15.8 7.6 10.7
Fab start-up costs -- -- -- 0.5
Sales and marketing 5.0 10.5 6.2 7.1
General and administrative 5.3 9.3 6.8 7.2
Costs incurred on termination of
development program -- -- 1.4 --
Stock-based compensation 4.8 (0.9) 2.5 (0.6)
-------- -------- -------- --------
Total operating expenses 22.5 34.7 24.5 24.8
-------- -------- -------- --------
Operating income (loss) 3.9 (57.8) (4.5) (28.2)
Equity in loss of CSP and SMP (5.6) (8.8) (5.9) (4.5)
Other income 0.1 2.3 0.2 0.7
Interest income 0.3 0.2 0.4 0.3
Interest expense (2.5) (6.3) (2.9) (4.9)
Exchange gain (loss) 0.6 7.9 1.3 1.1
-------- -------- -------- --------
Income (loss) before income taxes (3.3) (62.6) (11.4) (35.4)
Income tax (expense) benefit (0.1) (0.1) 0.0 (0.2)
-------- -------- -------- --------
Net income (loss) (3.4) (62.7) (11.4) (35.6)
======== ======== ======== ========
</TABLE>
Three months ended September 30, 1999 and September 30, 1998
Net revenue. Net revenue increased 118.5% from $83.9 million in the
three months ended September 30, 1998 to $183.3 million in the three months
ended September 30, 1999. The higher revenue was due to improved customer demand
led by the U.S. region (up $67.6 million) and addition of new customers in our
fastest growing region - Europe (up $24.0 million).
Increasingly Europe is becoming a significant part of our business while
the U.S. remains as our dominant region. The focus on high growth market
segments such as communications and systems-level solutions, and moving away
from stand alone commodity memory market caused such a shift in the revenue mix
by region.
The number of eight-inch equivalent wafers shipped increased from 97,600
in the three months ended September 30, 1998 to 176,800 in the three months
ended September
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30, 1999, an increase of 79,200 or 81.1%. Average selling prices also
contributed to net revenue improvement. Average selling prices increased from
$859 per wafer in the three months ended September 30, 1998 to $1,037 per wafer
in the three months ended September 30, 1999. The average selling price
improvement was mainly due to shipment of wafers with higher mix of advanced
technology.
Cost of revenue and gross profit (loss). Cost of revenue increased 30.7%
from $103.2 million in the three months ended September 30, 1998 to $134.9
million in the three months ended September 30, 1999, principally due to the
increase in production volumes. The increase in the number of wafers produced
resulted in a 27.8% decrease in average cost per wafer from $1,057 in the three
months ended September 30, 1998 to $763 in the three months ended September 30,
1999. The higher average selling price and lower cost per wafer resulted in an
improvement in gross margin from -23.0% in the three months ended September 30,
1998 to 26.4% in the three months ended September 30, 1999.
Operating Expenses.
<TABLE>
<CAPTION>
Three Months Ended
September 30,
1999 1998 Change
-------- -------- --------
(in thousands) (%)
<S> <C> <C> <C>
Research and development 13,506 13,282 1.7
Sales and marketing 9,169 8,812 4.1
General and administrative 9,775 7,777 25.7
Stock-based compensation 8,849 (724) n.m.
-------- -------- --------
41,299 29,147 41.7
======== ======== ========
</TABLE>
For the three months ended September 30, 1999, research and development
expenses, and sales and marketing expenses increased by 1.7% and 4.1%
respectively. General and administrative expenses increased 25.7% during the
same period. The increase was due primarily to higher administrative headcount
to support increased operating activities which resulted in higher payroll and
staff related expenses. As a percentage of net revenue, general and
administrative expenses reduced from 9.3% for the three months ended September
30, 1998 to 5.3% in the three months ended September 30, 1999.
Equity in loss of CSP and SMP. Our share of the losses in CSP and SMP
was $7.4 million in the three months ended September 30, 1998 and $10.2 million
in the three months ended September 30, 1999. CSP and SMP have not yet commenced
volume production and the losses are for costs incurred for start-up activities.
Other. Other income decreased from $1.9 million in the three months
ended September 30, 1998 to $0.1 million in the three months ended September 30,
1999 due to absence of recognizable grants from the Government of Singapore for
both research and development and staff training. Interest expense decreased
from $5.3 million in the three months ended September 30, 1998 to $4.5 million
in the three
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months ended September 30, 1999 due to reduced principal amounts outstanding on
our loans and lower interest rates. We recognized an exchange gain of $6.6
million in the three months ended September 30, 1998 and $1.1 million in the
three months ended September 30, 1999 primarily related to currency fluctuations
between the U.S. dollar and the Singapore dollar.
Net income (loss). Net loss for the three months ended September 30,
1999 was $6.2 million compared with $52.6 million for the three months ended
September 30, 1998, including a stock-based compensation charge of $8.8 million
and credit of $0.7 million, respectively. Without the stock-based compensation
charge, net income was $2.7 million for the three months ended September 30,
1999.
Nine months ended September 30, 1999 and September 30, 1998
Net revenue. Net revenue increased 51.0%, from $316.7 million in the
first nine months of 1998 to $478.0 million in the first nine months of 1999.
The higher revenue was due to improved customer demand led by the U.S. region
(up $169.9 million) and addition of new customers in our fastest growing region
- - Europe (up $32.7 million). The revenue breakdown by region is as follows :
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
Regions 1999 1998
- ------------ ---- ----
<S> <C> <C>
U.S. 75% 59%
Europe 8% 2%
Japan 2% 1%
Asia Pacific 15% 38%
</TABLE>
The change in revenue mix was a reflection of our focus on high growth
market segments such as communications and systems-level solutions, and moving
away from stand alone commodity memory.
The number of eight-inch equivalent wafers shipped increased from
311,100 in the first nine months of 1998 to 504,100 in the first nine months of
1999, an increase of 193,000 or 62.0%. Average selling prices decreased from
$1,018 per wafer in the first nine months of 1998 to $948 per wafer in the first
nine months of 1999.
Cost of revenue and gross profit (loss). Cost of revenue increased 16.8%
from $327.3 million in the first nine months of 1998 to $382.2 million in the
first nine months of 1999 due to higher volume. The increase in the number of
wafers produced resulted in average cost per wafer decreasing 27.9% from $1,052
in the first nine months of 1998 to $758 in the first nine months of 1999. Gross
margin improved from -3.4% in the first nine months of 1998 to 20.1% in the
first nine months of 1999. This was the result of lower cost per wafer.
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Operating Expenses.
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
1999 1998 Change
------- ------- ------
(in thousands) (%)
<S> <C> <C> <C>
Research and development 36,461 33,924 7.5
Fab start-up costs -- 1,455 n.m.
Sales and marketing 29,737 22,421 32.6
General and administrative 32,476 22,867 42.0
Costs incurred on termination of
development program 6,500 -- n.m.
Stock-based compensation 12,138 (2,057) n.m.
------- ------- ----
117,312 78,610 49.2
------- ------- ----
</TABLE>
Research and development expenses. Research and development expenses
increased 7.5% from $33.9 million in the first nine months of 1998 to $36.5
million in the first nine months of 1999. This was due principally to expenses
for the development of 0.25um and 0.18um process technologies, including joint
development of 0.18um copper and aluminum processes with Lucent for high
density, low power and cost-effective applications, as well as other process
modules. As a percentage of net revenue, research and development expenses
reduced from 10.7% in the first nine months of 1998 to 7.6% in the first nine
months of 1999.
Costs incurred on termination of development program. During 1998, we
decided to discontinue a technology transfer and licensing arrangement related
to a development program. The program involved the transfer of two generation
(geometry) process technologies from the licensor and further enhancing them for
application by us. The process technologies were intended for a specific market
requiring embedding applications on to memory chips. The program started in
mid-1997 and by the later half of 1998, extreme weakness and volatility of the
market and adverse customer perceptions on the cost of the application, together
with customer views of the long and complicated product development cycle, led
to difficulties in both Chartered and the licensor fulfilling the original
intent of the agreement. All program transfer, development and marketing
activities were terminated in 1998.
In connection with the discontinuation of this development program,
certain equipment previously purchased and yet to be placed into service was
identified by management in 1998 as redundant and to be disposed of in the near
term. We recorded a $31.8 million loss in 1998 to reduce the carrying amount of
certain identified equipment and a technology license agreement to their
estimated fair value less costs to sell. This loss comprised $30.9 million for
the write-down of plant and equipment to fair value less costs to sell and $0.8
million to reduce the carrying amount of the related technology license
agreement to zero. The equipment was unique to or specifically configured to the
requirements of the transferred process technologies and could not be
re-deployed effectively. The technology license agreement written off
represented the unamortized amount paid in 1997 for the acquisition of the
technology. As of December 31, 1998, management did not expect to incur any
further costs with respect to the decision to discontinue the development
program.
In February 1999, we reached an agreement in principle with the licensor
to terminate the program. As part of the settlement, we paid the licensor $6.5
million. The termination agreement was signed in August 1999. No further
payments will be made with respect to this program.
Sales and marketing expenses. Sales and marketing expenses increased by
32.6% from $22.4 million in the first nine months of 1998 to $29.7 million in
the first nine months of 1999 due principally to costs of expanding our EDA
partnership program. As a percentage of net revenue, sales and marketing
expenses reduced from 7.1% in the first nine months 1998 to 6.2% in the first
nine months of 1999.
General and administrative expenses. General and administrative expenses
increased 42.0% from $22.9 million in the first nine months of 1998 to $32.5
million in the first nine months of 1999. The increase was due primarily to
higher administrative headcount to support increased operating activities which
resulted in higher payroll and staff related expenses. As a percentage of net
revenue, general and administrative expenses reduced from 7.2% in the first nine
months of 1998 to 6.8% in the first nine months of 1999.
Equity in loss of CSP and SMP. Our share of losses in CSP and SMP was
$28.2 million in the first nine months of 1999 compared to $14.2 million in the
first nine months of 1998. This increase in loss represents the increase in
start-up activities for CSP and SMP during the first nine months of 1999.
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Other. Other income decreased from $2.2 million in the first nine months
of 1998 to $0.8 million in the first nine months of 1999 due to absence of
recognizable grants from the Government of Singapore for both research and
development and staff training. Interest expense decreased from $15.4 million in
the three months ended September 30, 1998 to $13.6 million in the three months
ended September 30, 1999 due to lower interest rates. Exchange gain increased
from $3.5 million in the first nine months of 1998 to $6.2 million in the first
nine months of 1999 due primarily to fluctuations between the U.S. dollar and
the Singapore dollar.
Income tax benefit (expense). We had a provision for taxes of $0.6
million in the first nine months of 1998 compared with $0.04 million in the
first nine months of 1999, which include included a tax refund of $0.8 million.
The tax refund was for allowed interest expense that was offset against interest
income for the period from 1992 to 1995.
Net income (loss). Net loss in the first nine months of 1999 was $54.7
million compared with $121.7 million for the first nine months of 1998,
including a stock-based compensation charge of $12.1 million and credit of $2.1
million, respectively. Without the stock-based compensation charge, net loss was
$42.6 million for the first nine months of 1999.
LIQUIDITY AND CAPITAL RESOURCES
At September 30, 1999, our principal sources of liquidity included $17.1
million in cash and cash equivalents and $102.2 million of unutilized banking
and credit facilities consisting of short-term advances and bank guarantees.
Net cash provided by operating activities totaled $172.9 million in the
first nine months of 1999 and $154.2 million in the first nine months of 1998.
Net cash used in investing activities totaled $196.6 million in the
first nine months of 1999 and $324.6 million in the first nine months of 1998.
Our investing activities have consisted primarily of capital expenditures
totaling $157.9 million in the first nine months of 1999 and $257.6 million in
the first nine months of 1998. Capital expenditures have been principally
comprised of the purchase of semiconductor equipment for the equipping of Fab 2
and Fab 3. We have also had significant cash outflows relating to our investment
in CSP and SMP.
Net cash used in financing activities totaled $59.0 million in the first
nine months of 1999 and net cash provided was $176.8 million in the first nine
months of 1998. In the first nine months of 1999, cash outflow from financing
activities was principally due to the return of customer deposits and repayments
of loans. Cash generated from financing activities in the first nine months of
1998 was principally generated from the issuance of ordinary shares totaling
$319.1 million, partly offset by the return of customer deposits and repayment
of loans.
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INVESTMENT IN SMP AND CSP
The investment in SMP and CSP at September 30, 1999 and December 31,
1998 consist of the following:
<TABLE>
<CAPTION>
September 30, December 31,
1999 1998
------------- ------------
<S> <C> <C>
Cost 120,139 79,786
Share of retained post-formation loss (49,931) (21,706)
Translation adjustments 407 407
-------- --------
70,615 58,487
-------- --------
</TABLE>
The Company accounts for its 51% investment in CSP and its 49%
investment in SMP using the equity method. Under the terms of the shareholders
agreements, the Company is committed to making an equity investment in CSP of up
to $215.4 million of which $49.6 million has been invested, and in SMP of up to
$122.2 million, of which $70.6 million has been invested.
Shown below is aggregated summarized financial information for CSP and
SMP.
<TABLE>
<CAPTION>
As of
September 30, December 31,
1999 1998
------------- ------------
<S> <C> <C>
Current assets 38,049 21,151
Technology license agreements 8,333 --
Property, plant and equipment 373,277 240,574
Short-term debt -- (75,460)
Other current liabilities (47,243) (38,642)
Long-term debt (231,000) (31,000)
Shareholders' equity 141,416 116,623
</TABLE>
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------- -------------------
1999 1998 1999 1998
------- ------- ------- -------
<S> <C> <C> <C> <C>
Net revenue 31,271 -- 52,677 --
Gross loss (10,692) -- (22,058) --
Operating loss (19,189) (13,048) (53,982) (25,767)
Net loss (20,604) (14,975) (56,838) (28,763)
</TABLE>
SMP has a term loan facility of $445 million with several banks and
financial institutions for capital expenditures, equipment and operating costs.
At September 30, 1999, $155 million had been drawn on this facility. The loan
matures March 17, 2005 and carries an interest rate of LIBOR rates with margin.
Interest is payable semi-annually in
14
<PAGE> 15
U.S. dollars and principal will be amortized in seven equal semi-annual
installments commencing March 17, 2002. Borrowings under this facility are
secured.
CSP has a term loan facility of $143.2 million with several banks and
financial institutions for capital expenditures and equipment. At September 30,
1999, $76.0 million had been drawn on this facility. The loan matures June 30,
2002 and carries an interest rate of 0.5625% above the arithmetic mean of SIBOR
rates for U.S. dollars deposits quoted by specified banks to the lender.
Interest is payable semi-annually in U.S. dollars and principal will be
amortized in four equal semi-annual installments commencing December 31, 2000.
Borrowings under this facility are unsecured.
YEAR 2000 READINESS
The following section contains forward-looking statements, and,
accordingly, readers are advised to read the cautionary language on page two of
this Quarterly Report.
IMPACT OF THE YEAR 2000 COMPUTER PROBLEM
The year 2000 computer problem refers to the potential for system and
processing failures of date-related data as a result of computer-controlled
systems using two digits rather than four to define the applicable year. For
example, computer programs that have time-sensitive software may recognize a
date represented as "00" as the year 1900 rather than the year 2000. This could
result in a system failure or miscalculations causing disruptions of operations,
including among other things, a temporary inability to process transactions,
send invoices, or engage in similar normal business activities.
STATE OF READINESS
As of October 1999, more than 99% of our fab equipment and internal
systems had been tested and upgraded and found to be Year 2000 ready.
We have received assurances from our third-party vendors that all
material business and manufacturing systems supplied by them and used by us are
Year 2000 ready. We do not believe that we have any significant systems that
contain embedded chips that are not Year 2000 ready. Our internal operations and
business are also dependent upon the computer-controlled systems of third
parties such as our equipment manufacturers, suppliers, customers and other
service providers. If our manufacturers, suppliers, vendors, partners, customers
and service providers fail to correct their Year 2000 problems, these failures
could result in an interruption in, or a failure of, our normal business
activities or operations, damage our relationships with our customers, and
seriously harm our company.
EXPENSES
Based on our assessment to date, we anticipate that expenses associated
with testing and remediating our internal systems will be approximately $3.0
million.
15
<PAGE> 16
RISKS
Failures of our internal systems to be Year 2000 ready could temporarily
prevent us from processing orders, issuing invoices and developing products and
could require us to devote significant resources to correcting these problems.
Such failures could result in an interruption in, or a failure of, our normal
business activities or operations, damage our relationships with our customers,
and seriously harm our company.
CONTINGENCY PLAN
We have identified several potential problems relating to the millennium
crossover. We believe the worst case scenario would be an external related power
surge or dip, or a power trip which could cause our equipment to malfunction. An
equipment malfunction could cause the semiconductors we are processing at the
time of the malfunction to be misprocessed. In addition, certain machines may
fail despite having been previously tested to be Year 2000 ready. To mitigate
these problems, we plan to shut down all of our information technology
applications and databases and stop all of our production equipment from 10.00
p.m. December 31, 1999 until 12:30 a.m. January 1, 2000. Over the last few days
of 1999, we will perform thorough backups of all of our applications and
databases. We will make hard copies of certain critical finance and
manufacturing reports. We have established a team of management, critical fab
operations staff, information technology staff and vendors that will be in our
factories during the millennium cross-over to handle any problems that may
arise.
All of our fab operations and support organizations are developing
contingency plans to address the Year 2000 problem. Each fab will have an
operations command center during the millennium cross-over that will monitor and
track any Year 2000 related issues. There will be a central Year 2000 command
center that will consolidate all of our Year 2000 issues. All of these
contingency plans are being compiled and reviewed by management.
All of our raw material suppliers have agreed to increase the amount of
buffer stock kept at their warehouses from 1.5 months to 2 months supply. This
will help mitigate any potential Year 2000 problems at the supplier level.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
For discussion of the above, please see the section captioned
"Management's Discussion and Analysis of Financial Conditions and Results of
Operations -- Quantitative and Qualitative Disclosures About Market Risk" in our
Prospectus dated October 29, 1999 (the "Prospectus") filed as part of a
Registration Statement on Form F-1, as amended (File No. 333-88397), which is
incorporated herein by reference.
16
<PAGE> 17
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
The Company is not involved in any legal proceedings that we believe
would be materially harmful to the Company.
Item 2. Changes in Securities
The effective date of our registration statement, filed on Form F-1
under the Securities Act of 1933 (File No. 333-88397) relating to our initial
public offering of equity securities (the "IPO") was October 29, 1999. We sold a
total of 287,500,000 ordinary shares, directly or in the form of American
Depositary Shares, to an underwriting syndicate, which included the exercise of
a 15% over-allotment option. The IPO was completed on November 4, 1999, at an
initial public offering price of $20.00 per American Depositary Share and
S$3.344 per ordinary share. We received approximately $547.3 million of net
proceeds from the IPO.
From the date of receipt, we have invested the net proceeds from the IPO
in various time deposits with institutions. None of the net proceeds from the
IPO were paid, directly or indirectly to any of our directors, officers or
general partners or any of their associates, or to any persons owing ten percent
or more of any class of our equity securities, or any affiliates.
We also completed a capital restructuring prior to, and in connection
with, the IPO. For a description of the capital restructuring, please see the
discussion under the section captioned "Capitalization" in the Prospectus.
In addition to the IPO, we have sold and issued the following securities
since June 30, 1999(1):
(i) On July 1, 1999, we issued an aggregate of 1,207,224
ordinary shares to participants under our 1997 Employees' Share
Ownership Scheme for total consideration of S$1,123,745; and
(ii) On August 2, 1999, we issued an aggregate of 977,600
ordinary shares to certain of our employees for total
consideration of S$910,000.
- ---------------
(1) We believe that the subject issuances were exempt from registration under
the Securities Act in reliance on Regulation S under the Securities Act, on
Rule 701 under the Securities Act or pursuant to Section 4(2) of the
Securities Act regarding transactions not involving a public offering.
Item 4. Submission of Matters to a Vote of Security Holders
On September 13, 1999, holders of our then-existing "A" ordinary shares
held a meeting to vote upon a reduction of capital of the Company in connection
with the IPO. This matter was unanimously approved and there were no dissenting
votes nor
17
<PAGE> 18
abstentions. Also on September 13, 1999, our shareholders held a meeting to vote
upon a reduction of capital of the Company connection with the IPO. This matter
was unanimously approved and there were no dissenting votes nor abstentions.
Item 5. Other Information
Effective October 1, 1999, the Company, Hewlett-Packard Europe B.V. and
EDB Investments Pte Ltd amended our strategic alliance agreement. The amendment
eliminated some of CSP's minority shareholders' approval rights over CSP's
annual business plan. It also increased the thresholds for asset dispositions,
borrowings and capital expenditures that would require the approval of CSP's
minority shareholders. As a result of the amendment, the Company treats CSP as a
consolidated subsidiary from October 1, 1999 forward.
On November 1, 1999, the Company and Singapore Technologies Pte Ltd
entered into a new management and support services agreement which replaces our
prior arrangement with ST. The new agreement is filed herewith as Exhibit 10.1.
In addition, Hewlett-Packard Company has publicly announced that it is in the
process of spinning-off certain of its business into a new company, Agilent
Technologies, Inc. Due to the spin-off, several of the agreements which
Hewlett-Packard Company and its subsidiaries had previously entered into with
the Company have been assigned to Agilent Technologies, Inc. The agreements
reflecting the assignments are filed herewith as Exhibits 10.2 through 10.7.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
<TABLE>
<S> <C>
1.1 U.S. Underwriting Agreement dated October 28, 1999 by and among
the Company and the underwriters listed on the signature pages
thereto.
1.2 International Underwriting Agreement dated October 28, 1999 by
and among the Company and the underwriters listed on the
signature pages thereto.
1.3 Singapore Management and Underwriting Agreement dated October
28, 1999 by and among the Company and the underwriters listed on
the signature pages thereto.
4 Deposit Agreement dated as of November 4, 1999 by and among the
Company, Citibank, N.A. and the holders and beneficial owners of
American Depositary Shares evidenced by American Depositary
Receipts issued thereunder (including as an exhibit, the form of
American Depositary Receipt).
</TABLE>
18
<PAGE> 19
<TABLE>
<S> <C>
10.1 ST Group Management and Support Services Agreement dated
November 1, 1999 by and between the Company and Singapore
Technologies Pte Ltd.
10.2 Second Supplemental Agreement dated November 9, 1999 by and
among Chartered Silicon Partners Pte Ltd, the banks on the
signature pages thereto, as Lenders, and ABN Amro Bank
N.V.(Singapore Branch), as agent.
10.3 Second Supplemental Shareholders Undertaking dated November 9,
1999 by and among Chartered Silicon Partners Pte Ltd, as
Borrower, the Company, EDB Investments Pte Ltd, Agilent
Technologies Europe B.V., as Shareholders, Hewlett-Packard
Europe B.V., as Retiring Shareholder, and ABN Amro Bank N.F.
(Singapore Branch), as Agent.
10.4 Novation and Amendment Agreement dated November 9, 1999 by and
among Chartered Silicon Partners Pte Ltd, the Company,
Hewlett-Packard Company and Agilent Technologies, Inc. relating
to the Assured Supply and Demand Agreement 64-225 dated July 4,
1997, as amended.
10.5 Novation and Amendment Agreement dated November 9, 1999 by and
among Chartered Silicon Partners Pte Ltd, the Company,
Hewlett-Packard Company and Agilent Technologies, Inc. relating
to the License and Technology Transfer Agreement 64-224 dated
July 4, 1997.
10.6 Deed of Accession and Ratification dated November 9, 1999 by and
among the Company, EDB Investments Pte Ltd, Hewlett-Packard
Europe B.V. and Agilent Technologies Europe B.V. relating to the
Joint Venture Agreement dated March 13, 1997, as amended.
10.7 Deed of Accession and Ratification dated November 9, 1999 by and
among the Company, EDB Investments Pte Ltd, Hewlett-Packard
Europe B.V. and Agilent Technologies Europe B.V. relating to the
Option Agreement dated July 4, 1997.
</TABLE>
(b) Reports on Form 8-K
During the quarter ended September 30, 1999, the Company filed no
current reports on Form 8-K.
19
<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunder duly organized.
Date: November 23, 1999
CHARTERED SEMICONDUCTOR
MANUFACTURING LTD
By: /s/ Barry Waite
-----------------------------------------
Name: Barry Waite
Title: President and Chief Executive Officer
By: /s/ Chia Song Hwee
-----------------------------------------
Name: Chia Song Hwee
Title: Chief Financial Officer
20
<PAGE> 21
Exhibit Index
<TABLE>
<S> <C>
1.1 U.S. Underwriting Agreement dated October 28, 1999 by and among
the Company and the underwriters listed on the signature pages
thereto.
1.2 International Underwriting Agreement dated October 28, 1999 by
and among the Company and the underwriters listed on the
signature pages thereto.
1.3 Singapore Management and Underwriting Agreement dated October
28, 1999 by and among the Company and the underwriters listed on
the signature pages thereto.
4 Deposit Agreement dated as of November 4, 1999 by and among the
Company, Citibank, N.A. and the holders and beneficial owners of
American Depositary Shares evidenced by American Depositary
Receipts issued thereunder (including as an exhibit, the form of
American Depositary Receipt).
10.1 ST Group Management and Support Services Agreement dated
November 1, 1999 by and between the Company and Singapore
Technologies Pte Ltd.
10.2 Second Supplemental Agreement dated November 9, 1999 by and
among Chartered Silicon Partners Pte Ltd, the banks on the
signature pages thereto, as Lenders, and ABN Amro Bank
N.V.(Singapore Branch), as agent.
10.3 Second Supplemental Shareholders Undertaking dated November 9,
1999 by and among Chartered Silicon Partners Pte Ltd, as
Borrower, the Company, EDB Investments Pte Ltd, Agilent
Technologies Europe B.V., as Shareholders, Hewlett-Packard
Europe B.V., as Retiring Shareholder, and ABN Amro Bank N.F.
(Singapore Branch), as Agent.
10.4 Novation and Amendment Agreement dated November 9, 1999 by and
among Chartered Silicon Partners Pte Ltd, the Company,
Hewlett-Packard Company and Agilent Technologies, Inc. relating
to the Assured Supply and Demand Agreement 64-225 dated July 4,
1997, as amended.
10.5 Novation and Amendment Agreement dated November 9, 1999 by and
among Chartered Silicon Partners Pte Ltd, the Company,
Hewlett-Packard Company and Agilent Technologies, Inc. relating
to the License and Technology Transfer Agreement 64-224 dated
July 4, 1997.
10.6 Deed of Accession and Ratification dated November 9, 1999 by and
among the Company, EDB Investments Pte Ltd, Hewlett-Packard
Europe B.V. and Agilent Technologies Europe B.V. relating to the
Joint Venture
</TABLE>
<PAGE> 22
<TABLE>
<S> <C>
Agreement dated March 13, 1997, as amended.
10.7 Deed of Accession and Ratification dated November 9, 1999 by and
among the Company, EDB Investments Pte Ltd, Hewlett-Packard
Europe B.V. and Agilent Technologies Europe B.V. relating to the
Option Agreement dated July 4, 1997.
</TABLE>
<PAGE> 1
EXHIBIT 1.1
EXECUTION COPY
Chartered Semiconductor Manufacturing Ltd
150,000,000 Ordinary Shares*
directly or in the form of American Depositary Shares
(S$0.26 par value)
Each American Depositary Share representing
the right to receive ten Ordinary Shares
U.S. Underwriting Agreement
New York, New York
October 28, 1999
Salomon Smith Barney Inc.
Credit Suisse First Boston Corporation
Hambrecht & Quist LLC
SG Cowen Securities Corporation
SoundView Technology Group, Inc.
As U.S. Representatives of
the several U.S. Underwriters
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
U.S.A.
Ladies and Gentlemen:
Chartered Semiconductor Manufacturing Ltd, a corporation
organized under the laws of Singapore (the "Company"), proposes to sell to the
several U.S. underwriters named in Schedule I hereto (the "U.S. Underwriters"),
for whom you (the "U.S. Representatives") are acting as representatives,
ordinary shares (the "Ordinary Shares"), S$0.26 par value per share, of the
Company directly or in the form of American Depositary Shares (the "ADSs") (said
Ordinary Shares to be issued and sold by the Company being hereinafter called
the "U.S. Underwritten Shares"). The Company also proposes to grant to the U.S.
Underwriters an option to purchase up to 22,500,000 additional Ordinary Shares
directly or in the form of ADSs to cover overallotments (the "U.S. Option
Shares" and together with the U.S. Underwritten Shares, the "U.S. Shares" or the
"U.S. Securities").
It is understood that the Company is concurrently entering into
the International Underwriting Agreement (together with this U.S. Underwriting
Agreement, the "Underwriting Agreements") providing for the sale by the Company
of an aggregate of 75,000,000 Ordinary Shares directly or in the form of ADSs
(said Ordinary Shares to be sold by the Company
- -----------------------
* Plus an option to purchase from Chartered Semiconductor Manufacturing
Ltd up to 22,500,000 additional Ordinary Shares directly or in the form
of American Depositary Shares to cover overallotments.
<PAGE> 2
pursuant to the International Underwriting Agreement being hereinafter called
the "International Underwritten Shares", and together with the U.S. Underwritten
Shares, the "Underwritten Shares") and providing for the grant to the
International Underwriters of an option to purchase from the Company up to
11,250,000 additional Ordinary Shares directly or in the form of ADSs to cover
overallotments (the "International Option Shares" and together with the
International Underwritten Shares, the "International Shares" or the
"International Securities", and the International Securities together with the
U.S. Securities, the "Securities").
It is also understood that the Company is concurrently entering
into the Sinagpore Management and Underwriting Agreement, dated October 29,
1999, providing for the sale by the Company of an aggregate of 25,000,000
Ordinary Shares (said Ordinary Shares to be issued and sold by the Company
pursuant to the Singapore Management and 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 3,750,000 additional Ordinary Shares to cover overallotments (the "Singapore
Option Shares", and together with the Singapore Underwritten Shares, the
"Singapore Shares"). In connection with the Singapore Offering, the Company has
made a listing application to the Stock Exchange of Singapore Limited (the
"SES") and has prepared a prospectus (the "Singapore Prospectus") for
circulation to potential subscribers in Singapore.
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 November 4, 1999 (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. Upon any such
deposit of Ordinary Shares, the Depositary will issue ADSs 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", 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, and Shares, as well as, in each case, to any ADSs representing such
securities.
It is further understood and agreed that the U.S. Underwriters,
the International Underwriters and the 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 the Singapore
Underwriters may purchase from the U.S. Underwriters a portion of the U.S.
Securities to be sold pursuant to this U.S. Underwriting Agreement, the U.S.
Underwriters and the Singapore Underwriters may purchase from the International
Underwriters a portion of the International Securities to be sold pursuant to
the International Underwriting Agreement and the
2
<PAGE> 3
U.S. Underwriters and the International Underwriters may purchase from the
Singapore Underwriters a portion of the Singapore Securities to be sold pursuant
to the Singapore Management and 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"; together with the U.S. Offering, the "Combined
Offering"; and the offering of the Singapore Shares (which will be only in the
form of Ordinary Shares) is referred to herein as the "Singapore Offering". The
U.S. Offering, International Offering and Singapore Offering are referred to
collectively as the "Global Offering".
As part of the Global Offering contemplated by this U.S.
Underwriting Agreement, the U.S. Underwriters, the International Underwriters
and the Singapore Underwriters have agreed to reserve up to five per cent. of
the Ordinary Shares (including Ordinary Shares represented by ADSs) out of the
Global Offering for sale to the Company's employees and business associates, to
the directors, officers and employees of the Company's affiliates and to certain
charitable organizations in Singapore (collectively, "Participants"), as set
forth in the Prospectuses under the heading "Underwriting" (the "Directed Share
Program"). The Shares to be sold by the U.S. Underwriters, the International
Underwriters and the Singapore Underwriters pursuant to the Directed Share
Program (the "Directed Shares") will be sold by them at the initial public
offering price. The Directed Shares may be sold by the U.S. Underwriters, the
International Underwriters and the Singapore Underwriters among their respective
underwriting syndicates, and in such event, any commissions may be adjusted upon
agreement of the Company and the representatives of the U.S. Underwriters, the
International Underwriters and the Singapore Underwriters. Any Directed Shares
not orally confirmed for purchase by any Participants by the end of the Business
Day on which the Underwriting Agreements and the Singapore Management and
Underwriting Agreement are executed will be offered to the public by the U.S.
Underwriters, the International Underwriters and the Singapore Underwriters as
set forth in the Prospectuses and the Agreement Among U.S. Underwriters,
International Underwriters and Singapore Underwriters.
To the extent there are no additional U.S. Underwriters listed on
Schedule I other than you, the term U.S. Representatives as used in this U.S.
Underwriting Agreement shall mean you, as U.S. Underwriters, and the terms U.S.
Representatives and U.S. Underwriters shall mean either the singular or plural
as the context requires. The use of the neuter in this U.S. Underwriting
Agreement shall include the feminine and masculine wherever appropriate.
Certain terms used in this U.S. Underwriting Agreement are
defined in Section 21 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each U.S. Underwriter as set forth below in this
Section 1.
(a) The Company has filed with the Commission a registration
statement (file number 333-88397) on Form F-1, including the related
U.S. Preliminary Prospectus, for the registration under the Act of the
offering and sale of the U.S. Securities. The
3
<PAGE> 4
Company may have filed one or more amendments thereto, including the
related U.S. Preliminary Prospectus, which has previously been furnished
to you. The Company will next file with the Commission either (1) prior
to the Effective Date of the Registration Statement, a further amendment
to the Registration Statement (including the form of U.S. Prospectus) or
(2) after the Effective Date of the Registration Statement, the U.S.
Prospectus in accordance with Rules 430A and 424(b). In the case of
clause (2), the Company has included in the Registration Statement, as
amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be included
in the Registration Statement and the U.S. Prospectus with respect to
the Ordinary Shares and the offering thereof directly or in the form of
ADSs. As filed, such amendment and form of final U.S. Prospectus, or
such U.S. Prospectus, as the case may be, shall contain all Rule 430A
Information, together with all other such required information, with
respect to the underlying Ordinary Shares and the offering thereof
directly or in the form of ADSs, and, except to the extent the U.S.
Representatives shall agree to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes
(beyond that contained in the latest U.S. Preliminary Prospectus) as the
Company has advised you, prior to the Execution Time, will be included
or made therein.
It is understood that two forms of prospectuses are to be used in
connection with the Combined Offering and sale of the Securities: one
form of prospectus relating to the U.S. Securities, which are to be
offered and sold to United States and Canadian Persons, and one form of
prospectus relating to the International Securities, which are to be
offered and sold to persons other than United States and Canadian
Persons. The U.S. Prospectus and the International Prospectus are
identical except for the outside front cover page and the outside back
cover page. In addition, the Singapore Prospectus will be used in
connection with the Singapore Offering.
(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
U.S. 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), did not and will not, and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date and any
settlement date, each Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company 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 herein or
in writing to the Company by or
4
<PAGE> 5
on behalf of any Underwriter through the Representatives specifically
for inclusion in the Registration Statement or the Prospectuses (or any
supplement thereto). It is understood that the information that has been
furnished in writing by or on behalf of the several Underwriters for
inclusion in the Registration Statement, Preliminary Prospectuses or the
Prospectuses is limited to (A) the names of the Underwriters and their
respective participation in the sale of the Securities as set forth in
the two charts under the heading "Underwriting" in the Preliminary
Prospectuses or Propsectuses, (B) the statements set forth in the last
paragraph on the front cover page of the Preliminary Prospectuses or
Prospectuses regarding delivery of the Securities (and the ADSs
representing such Securities) and (C) the statements set forth in the
seventh, tenth and sixteenth paragraphs under the heading "Underwriting"
in the Preliminary Prospectuses or Prospectuses.
(c) The Company has filed with the Commission a registration
statement (file number 333-88623) on Form F-6 (the "ADR Registration
Statement") for the registration under the Act of the offering and sale
of the ADSs. The Company may have filed one or more amendments thereto,
each of which has previously been furnished to you. Such ADR
Registration Statement at the time of its effectiveness did or will
comply and on the Closing Date, will comply, in all material respects
with the applicable requirements of the Act and the rules thereunder and
at the time of its Effective Date and at the Execution Time, did not and
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(d) Each of the Company and the Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of
the jurisdiction in which it is incorporated with full corporate power
to own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectuses, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified or be in good
standing would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and the Subsidiaries,
taken as a whole.
(e) All the outstanding share capital of each Subsidiary has been
duly and validly authorized and issued and is fully paid and
non-assessable and, except for such shares of Chartered Silicon Partners
Pte Ltd ("CSP") as are owned by Hewlett-Packard Europe B.V., or EDB
Investments Pte Ltd which shares do not exceed 49% of the outstanding
voting shares of CSP, all the outstanding shares of capital stock of the
Subsidiaries are owned by the Company directly free and clear of any
perfected security interests, liens or encumbrances.
(f) The Company's authorized, issued and outstanding equity
capitalization is as set forth in the Prospectuses. The outstanding
Ordinary Shares have been duly and validly authorized and issued and are
fully paid and non-assessable. The Securities being sold under the
Underwriting Agreements by the Company have been duly and validly
authorized, and, when issued and delivered to the Depositary or its
nominee in accordance with the Deposit Agreement, the U.S. Underwriters
in accordance with this
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<PAGE> 6
U.S. Underwriting Agreement and the International Underwriters in
accordance with the International Underwriting Agreement, will be
validly issued, fully paid and non-assessable. The certificates for the
Shares and the ADRs are in valid form. The holders of outstanding shares
of capital stock of the Company are not entitled to any preemptive or
other rights to subscribe for the Shares and the Securities except for
such rights that have been effectively waived. Except as disclosed in
the Prospectuses, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock
of or ownership interests in the Company are outstanding. The Securities
are freely transferable by the Company to or for the account of the
several Underwriters, 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.
(g) The capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectuses. The
capital restructuring was approved by the Company's shareholders at an
extraordinary general meeting on October 14, 1999 (the "EGM") and has
become effective and has been completed as described in the Prospectuses
under the heading "Capitalization." The Articles of Association
described in the Prospectuses under the heading "Description of Ordinary
Shares" were adopted by the Company's shareholders at the EGM and are in
full force and effect.
(h) Each of this U.S. Underwriting Agreement, the International
Underwriting Agreement, the Singapore Management and Underwriting
Agreement and the Deposit Agreement has been duly authorized, executed
and delivered by the Company.
(i) There is no franchise, contract or other document of a
character required to be described in the Registration Statement, ADR
Registration Statement or Prospectuses, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
description of each such contract, franchise or document in the
Prospectuses is a fair description thereof in all material respects; and
each such franchise, contract or other document to which the Company is
a party, assuming due authorization, execution and delivery thereof by
all parties thereto, is enforceable against the Company in accordance
with its terms and is in full force and effect, and to the Company's
knowledge, is a legal, valid and binding obligation of the other parties
thereto. The statements in the Prospectuses under the heading
"Taxation", fairly summarize the matters therein described.
(j) Upon deposit of the underlying U.S. Shares with the
Depositary or its nominee pursuant to the Deposit Agreement in
accordance with the terms thereof, all right, title and interest in such
U.S. Shares will be transferred to the Depositary on behalf of the U.S.
Underwriters, free and clear of all pledges, liens, security interests,
charges, claims or encumbrances of any kind. Upon issuance by the
Depositary of the ADRs evidencing the ADSs against deposit of underlying
Ordinary 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 duly registered will be entitled to the rights
specified in the ADRs and in the Deposit Agreement; and upon the sale
and delivery to
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<PAGE> 7
the U.S. Underwriters of the U.S. Securities, and payment therefor in
accordance with this U.S. Underwriting Agreement, the U.S. Underwriters
will acquire good, marketable and valid title to such U.S. 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, other than those arising in favor of the persons purchasing
through the U.S. Underwriters.
(k) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to the Singapore government or any political
subdivision or taxing authority thereof in connection with (A) the
execution and delivery of the Underwriting Agreements, (B) the issuance
of the Ordinary Shares or the ADSs in the manner contemplated by the
Underwriting Agreements, (C) the deposit with the Depositary of the
underlying Ordinary Shares against issuance of ADRs evidencing the ADSs,
(D) the sale and delivery of the Ordinary Shares and the ADSs to the
Underwriters, or (E) except as disclosed in the Prospectuses under the
heading "Taxation--Singapore Taxation", the resale and delivery of such
Ordinary Shares and ADSs by the U.S. Underwriters or the International
Underwriters in the manner contemplated in the Prospectuses.
(l) Except as described in the Prospectuses, all dividends and
other distributions declared and payable on the Ordinary Shares may
under current Singapore law and regulations be paid to the Depositary
and to the holders of Securities, as the case may be, in Singapore
dollars and may be converted into foreign currency that may be
transferred out of Singapore in accordance with the Deposit Agreement.
(m) No consent, approval (including exchange control approval),
authorization, filing with or order of any court or governmental or
regulatory agency or body is required under Singapore or U.S. federal
law or the laws of any state or political subdivision thereof in
connection with the transactions contemplated in this U.S. Underwriting
Agreement, the International Underwriting Agreement, the Singapore
Management and Underwriting Agreement and the Deposit Agreement, except
such as have been obtained under the Act, the Exchange Act, the
Companies Act, Chapter 50 of Singapore, and such as may be required
under the blue sky or similar laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the Underwriters
in the manner contemplated in the Underwriting Agreements and the
Prospectuses except as may be required pursuant to the National
Association of Securities Dealers, Inc. rules, The Nasdaq Stock Market,
Inc. rules or the letter from the SES dated September 15, 1999 granting
approval in principle for the listing and quotation of the entire issued
and share capital of the Company on the Main Board of the SES, as have
been obtained.
(n) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions contemplated in this U.S.
Underwriting Agreement, the International Underwriting Agreement, the
Singapore Management and Underwriting Agreement or the Deposit
Agreement, nor the fulfillment of the terms hereof or thereof will
conflict with, result in a breach or violation of, or imposition of any
lien, charge or encumbrance upon any property or assets of the Company
or any of the Subsidiaries
7
<PAGE> 8
pursuant to, (i) the memorandum and articles of association of
the Company or the constituent documents of any of the Subsidiaries,
(ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement, permit, license, franchise or
other agreement, obligation, condition, covenant or instrument to which
the Company or any of the Subsidiaries is a party or bound or to which
its or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any
of the Subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or any of the Subsidiaries or any of its
or their properties, except, with respect to clause (ii) or (iii) above,
such as would not individually or in the aggregate, have a material
adverse effect on (A) the performance of this U.S. Underwriting
Agreement or the consummation of any of the transactions contemplated
herein or (B) the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and the Subsidiaries,
taken as a whole.
(o) The Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Prospectuses, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(p) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement or the
ADR Registration Statement except for such rights that have been
effectively waived.
(q) The consolidated historical financial statements and
schedules of the Company and the Subsidiaries (including the related
notes) included in the Registration Statement and the Prospectuses
present fairly in all material respects the financial condition, results
of operations, changes in financial position and cash flows as of the
dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been prepared in
conformity with United States generally accepted accounting principles
("U.S. GAAP") applied on a consistent basis throughout the periods
indicated (except as otherwise noted therein). The summary and selected
financial data included in the Registration Statement and the
Prospectuses fairly present in all material respects, on the basis
stated in the Registration Statement and the Prospectuses, the
information included therein. The pro forma financial statements
included in the Prospectuses and the Registration Statement include
assumptions that provide a reasonable basis for presenting the
significant effects directly attributable to the transactions and the
events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma adjustments
reflect proper application of those adjustments to the historical
financial statement amounts in the pro forma financial statements
included in the Prospectuses and the Registration Statement. The pro
forma financial statements included in the Prospectuses and the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of Regulation S-X under the Act
and the pro forma adjustments have been properly applied to the
historical amounts in the compilation of those statements.
8
<PAGE> 9
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of the Subsidiaries or its or their property is pending
or, to the knowledge of the Company, threatened that (i) could
reasonably be expected to have a material adverse effect on the
performance of this U.S. Underwriting Agreement or the consummation of
any of the transactions contemplated hereby or (ii) could reasonably be
expected to have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the
Company and the Subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set
forth or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(s) Each of the Company and the Subsidiaries owns or leases all
such properties as are necessary to the conduct of its operations as
presently conducted. Any real property and buildings held under lease by
the Company or any of the Subsidiaries are held under valid, subsisting
and enforceable leases, with such exceptions as are not material and do
not interfere with the use made or proposed to be made of such property
and buildings by the Company or any of the Subsidiaries, in each case
except as described in or contemplated in the Prospectuses.
(t) Neither the Company nor any of the Subsidiaries is in
violation or default of (i) any provision of its Memorandum and Articles
of Association or other constituent documents, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of the Subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
any of the Subsidiaries or any of its or their properties, except, with
respect to clause (ii) or (iii) above, such as would not individually or
in the aggregate, have a material adverse effect on (A) the performance
of this U.S. Underwriting Agreement or the consummation of any of the
transactions contemplated herein or (B) the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole.
(u) KPMG Peat Marwick ("KPMG"), who have certified certain
financial statements of the Company and the Subsidiaries and delivered
their report with respect to the audited consolidated financial
statements and schedules included in the Registration Statement and the
Prospectuses, are independent public accountants with respect to the
Company within the meaning of the Act and the applicable published rules
and regulations thereunder.
(v) The Company has not taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities, provided, however, that this provision shall not apply to
any trading or stabilization activities conducted by the Underwriters.
9
<PAGE> 10
(w) Each of the Company and the Subsidiaries possesses all
licenses, permits, certificates and other authorizations issued by the
appropriate Singapore, U.S., foreign, federal, state or local regulatory
authorities necessary to conduct its business as currently conducted,
except in any case in which the failure so to possess any such license,
permit, certificate or other authorization would not, individually or in
the aggregate, have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole. Neither the Company
nor any of the Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such license, permit,
certificate or authorization which, singly or in the aggregate, if the
subject of an unfavorable decision ruling or findings, would have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in the
Prospectuses (exclusive of any supplement thereto).
(x) Except as described in the Prospectuses, for the periods
described in the Prospectuses, the Company has no material capital
commitments.
(y) No labor dispute with the employees of the Company or any of
the Subsidiaries exists or to the Company's best knowledge, is
threatened, and the Company is not aware of any existing labor
disturbance by the employees of any of its or any of the Subsidiaries',
that could have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(z) Each of the Company and the Subsidiaries is insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses
in which it is engaged. All policies of insurance insuring the Company
or any of the Subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect; each of
the Company and the Subsidiaries is in compliance with the terms of such
policies and instruments in all material respects; and there are no
claims by the Company or any of the Subsidiaries under any such policy
or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause. Neither the Company nor
any of the Subsidiaries has been refused any insurance coverage sought
or applied for. The Company has no reason to believe that either the
Company or any of the Subsidiaries will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto).
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<PAGE> 11
(aa) None of the Company's Subsidiaries is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on its capital stock, from repaying to the
Company any loans or advances to it from the Company or from
transferring any of its property or assets to the Company or the other
Subsidiary, except for certain restrictions as set forth in the Joint
Venture Agreement dated July 4, 1997 by and among the Company,
Hewlett-Packard Europe B.V. and EDB Investments Pte Ltd (as amended) or
as described in or contemplated in the Prospectuses.
(bb) The Company and the Subsidiaries own, possess, license or
have other rights to use, on reasonable terms, all patents, patent
applications, trademarks, service marks, trade and service mark
registrations, trade names, licenses, copyrights, inventions, trade
secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct of
the Company's business as now conducted, and as described in the
Prospectuses, except where the failure to so own, possess, license or
have other rights to use would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from the ordinary course of business. Except as
set forth in the Prospectuses under the captions "Risk Factors" or
"Business - Intellectual Property," to the Company's best knowledge, (a)
there are no rights of third parties to any such Intellectual Property;
(b) there is no material infringement by third parties of any such
Intellectual Property; (c) there is no pending or threatened action,
suit, proceeding or claim by others challenging the Company's rights in
or to any such Intellectual Property, and the Company is unaware of any
facts which would form a reasonable basis for any such claim; (d) there
is no pending or threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property, and
the Company is unaware of any facts which would form a reasonable basis
for any such claim; (e) there is no pending or threatened action, suit,
proceeding or claim by others that the Company infringes or otherwise
violates any patent, trademark, copyright, trade secret or other
proprietary right of others in any Intellectual Property, and the
Company is unaware of any other fact which would form a reasonable basis
for any such claim; and (f) there is no prior art of which the Company
is aware that may render any U.S. patent held by the Company invalid or
any U.S. patent application held by the Company unpatentable which has
not been disclosed to the U.S. Patent and Trademark Office, in the case
of any of (a) through (f) above, which would have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from the ordinary course of business.
(cc) Each of the Company and the Subsidiaries have implemented a
comprehensive, detailed program to analyze and address the risk that the
computer hardware and software used by them may be unable to operate
correctly with respect to calendar dates falling on or after January 1,
2000 in the same manner, and with the same functionality, as with
respect to calendar dates falling on or before December 31, 1999 (the
"Year 2000 Problem"), and the Company and each of the Subsidiaries
reasonably believes that such program will address the Year 2000 Problem
with respect to the material operations of the Company on a timely basis
and will not have a material
11
<PAGE> 12
adverse effect upon the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and the Subsidiaries,
taken as a whole.
(dd) The Company has filed all Singapore, U.S., foreign, federal,
state and local tax returns that are required to be filed or has
requested extensions thereof, except in any case in which the failure so
to file would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectuses (exclusive of any
supplement thereto) and has paid all taxes required to be paid by it and
any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good
faith or as would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectuses (exclusive of any
supplement thereto).
(ee) No Underwriter or holder of Securities is or will be deemed
to be resident, domiciled, carrying on business or subject to taxation
in Singapore solely by reason of the execution, delivery, consummation
or enforcement of this U.S. Underwriting Agreement.
(ff) Each of the Company and the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with U.S. generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(gg) The Company 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 Share Program, and that (ii) no
authorization, approval, consent, license, order, registration or
qualification of or with any government, governmental instrumentality or
court, other than such as have been obtained, is necessary under the
securities laws and regulations of foreign jurisdictions in which the
Directed Shares are offered outside the United States.
(hh) The Company and the Subsidiaries are (i) in compliance with
any and all Singapore laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants
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<PAGE> 13
("Environmental Laws") applicable to conduct their respective
businesses, (ii) have received and are in compliance with all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have
not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except where
such non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a material adverse change in the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in the Prospectuses (exclusive of any
supplement thereto).
(ii) Each of the Company and the Subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Section 302
of the United States Employee Retirement Income Security Act of 1974
("ERISA") and the regulations and published interpretations thereunder
with respect to each "plan" (as defined in Section 3(3) of ERISA and
such regulations and published interpretations) in which employees of
the Company and the Subsidiaries are eligible to participate (other than
any "multi-employer plan" within the meaning of Section 4001(a)(3) of
ERISA) and each such plan (other than any "multi-employer plan" within
the meaning of Section 4001(a)(3) of ERISA) is in compliance in all
material respects with the presently applicable provisions of ERISA and
the United States Internal Revenue Code of 1986, as amended, and such
regulations and published interpretations, except where such failure to
fulfill or such non-compliance would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole. The Company and the Subsidiaries
have not incurred any unpaid liability to the Pension Benefit Guaranty
Corporation (other than for the payment of premiums in the ordinary
course) or to any such plan under Title IV of ERISA, except such as
would not, individually or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole.
(jj) The Subsidiaries are the only significant subsidiaries of
the Company as defined by Rule 1.02 of Regulation S-X.
Any certificate signed by any officer of the Company or any of
the Subsidiaries, in his or her capacity as an officer of the Company or
any of the Subsidiaries, and delivered to you or counsel for the U.S.
Underwriters in connection with this U.S. Underwriting Agreement shall
be deemed to be a representation and warranty by the Company to each
U.S.
Underwriter as to the matters covered thereby.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this U.S. Underwriting
Agreement, the Company agrees to sell to each U.S. Underwriter, and each
U.S. Underwriter agrees,
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<PAGE> 14
severally and not jointly, to purchase from the Company, at a purchase
price of US$20.00 per ADS and S$3.344 per Ordinary Share, the amount of
U.S. Underwritten Shares set forth opposite such U.S. Underwriter's name
in Schedule I to this U.S. Underwriting Agreement.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this U.S. Underwriting
Agreement, the Company hereby grants an option to the several U.S.
Underwriters to purchase, severally and not jointly, up to 22,500,000
U.S. Option Securities at the same purchase price per ADS and per
Ordinary Share as the U.S. Underwriters shall pay for the U.S.
Underwritten Securities. Said option may be exercised to cover
overallotments in the sale of the U.S. Underwritten Securities by the
U.S. Underwriters. Said option may be exercised in whole or in part at
any time (but not more than once) on or before the 30th day after the
date of the Prospectuses upon written or telegraphic notice by the U.S.
Representatives to the Company setting forth the number of shares of the
U.S. Option Securities as to which the several U.S. Underwriters are
exercising the option and the settlement date. The number of U.S. Option
Securities to be purchased by each U.S. Underwriter shall be the same
percentage of the total number of shares of the U.S. Option Securities
to be purchased by the several U.S. Underwriters as such U.S.
Underwriter is purchasing of the U.S. Underwritten Securities, subject
to such adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the U.S.
Underwritten Securities and the U.S. Option Securities (if the option provided
for in Section 2(b) hereof shall have been exercised on or before the fifth
Business Day prior to the Closing Date) shall be made at 9:00 AM, New York City
time, on November 4, 1999, or such later date not later than five Business Days
after the foregoing date as the U.S. Representatives shall designate, which date
and time may be postponed by agreement among the U.S. Representatives and the
Company or as provided in Section 9 hereof (such date and time of delivery and
payment for the U.S. Securities being herein called in this U.S. Underwriting
Agreement, the "Closing Date"). Delivery of the U.S. Securities shall be made to
the U.S. Representatives for the respective accounts of the several U.S.
Underwriters, or if the U.S. Underwriters so elect, to the Depositary or its
nominee pursuant to the Deposit Agreement, in either case, against payment by
the several U.S. Underwriters through the U.S. Representatives of the respective
aggregate purchase prices of the U.S. Securities being sold by the Company to or
upon the order of the Company by wire transfer payable in same day funds to the
accounts specified by the Company. Delivery of the ADRs representing U.S.
Underwritten Securities and the U.S. Option Securities shall be made through the
facilities of The Depository Trust Company unless the U.S. Representatives shall
otherwise instruct at least one Business Day in advance of the Closing Date.
ADRs representing the U.S. Securities and any U.S. Shares not delivered to the
Depositary or its nominee pursuant to the Deposit Agreement shall be registered
in such names and in such denominations as Salomon Smith Barney Inc. ("Salomon
Smith Barney") may request not less than two Business Days in advance of the
Closing Date.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the International Underwriting
Agreement and the Singapore Management and Underwriting Agreement and that the
settlement date for any U.S. Option
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<PAGE> 15
Securities occurring after the Closing Date, shall occur simultaneously with the
settlement date under the International Underwriting Agreement and the Singapore
Management and Underwriting Agreement for any International Option Securities
and Singapore Option Securities occurring after the Closing Date.
If the option provided for in Section 2(b) hereof is exercised
after the fifth Business Day prior to the Closing Date, the Company will deliver
(at the expense of the Company) to the U.S. Representatives, c/o Salomon Smith
Barney at 388 Greenwich Street, New York, New York 10013, on the date specified
by the U.S. Representatives (which shall be within five Business Days after
exercise of said option), ADRs representing the U.S. Option Securities and any
U.S. Option Shares not delivered to the Depositary or its nominee pursuant to
the Deposit Agreement in such names and denominations as the U.S.
Representatives shall have requested against payment by the several U.S.
Underwriters through the U.S. Representatives of the purchase price thereof to
or upon the order of the Company by wire transfer of U.S. dollars and payable in
same day funds to the accounts specified by the Company. If settlement for the
U.S. Option Securities occurs after the Closing Date, the Company will deliver
to the U.S. Representatives on the settlement date for the U.S. Option
Securities, and the obligation of the U.S. Underwriters to purchase the U.S.
Option Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
U.S. Underwriters propose to offer the U.S. Securities for sale to the public as
set forth in the Prospectuses.
5. Agreements. (I) The Company agrees with the several U.S.
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement and the ADR Registration Statement, if not
effective at the Execution Time, and any amendment thereof, to become
effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement or
the ADR Registration Statement or supplement to the U.S. Prospectus or
any Rule 462(b) Registration Statement unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject
to the foregoing sentence, if the Registration Statement or the ADR
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the U.S. Prospectus is otherwise required under Rule
424(b), the Company will cause the U.S. Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to
the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the U.S.
Representatives of such timely filing. The Company will promptly advise
the U.S. Representatives (1) when the Registration Statement and the ADR
Registration Statement, if not effective at the Execution Time, shall
have become effective, (2) when the U.S. Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement
or ADR Registration Statement shall have been filed with the Commission,
(3) when,
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<PAGE> 16
prior to termination of the offering of the Securities, any amendment to
the Registration Statement or the ADR Registration Statement shall have
been filed or become effective, (4) of any request by the Commission or
its staff for any amendment of the Registration Statement, or any Rule
462(b) Registration Statement or ADR Registration Statement, or for any
supplement to the U.S. Prospectus or for any additional information, (5)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the ADR Registration
Statement or the institution or threatening of any proceeding for that
purpose and (6) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result
of which the U.S. Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or the ADR Registration
Statement or supplement the U.S. Prospectus to comply with the Act or
the rules thereunder, the Company promptly will (1) notify the U.S.
Representatives of any such event; (2) prepare and file with the
Commission, subject to the second sentence of paragraph (i)(a) of this
Section 5, an amendment or supplement which will correct such statement
or omission or effect such compliance; and (3) supply any supplemental
U.S. Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will timely file such
reports pursuant to the Exchange Act as are necessary in order to make
generally available to its security holders and to the U.S.
Representatives an earnings statement or statements covering the 12
month period ending December 31, 2000 of the Company and the
Subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 under the Act.
(d) The Company will furnish to the U.S. Representatives and
counsel for the U.S. Underwriters, without charge, signed copies of the
Registration Statement and the ADR Registration Statement (including
exhibits thereto) and to each other U.S. Underwriter a copy of the
Registration Statement and the ADR Registration Statement (without
exhibits thereto) and, so long as delivery of a prospectus by an U.S.
Underwriter or dealer may be required by the Act, as many copies of each
U.S. Preliminary Prospectus and U.S. Prospectus and any supplement
thereto as the U.S. Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the qualification
of the Securities for sale under the laws of such jurisdictions as the
U.S. Representatives may designate and will maintain such qualifications
in effect so long as required for the distribution of the U.S.
Securities, provided, however, that in no event shall the Company be
obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service
of process in suits, other than those
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<PAGE> 17
arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) Except pursuant to the Underwriting Agreements, the Company
will not, without the prior written consent of Salomon Smith Barney
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, and may file a Form S-8 with respect thereto.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Ordinary Shares or the
ADSs.
(h) The Company agrees to pay the costs and expenses relating to
the following matters: (i) the fees and expenses of its counsel
(including local counsel) and accountants in connection with the issue
of the Securities, (ii) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement and the ADR
Registration Statement (including financial statements and exhibits
thereto), each Preliminary Prospectus, each Prospectus, and each
amendment or supplement to any of them and mailing and delivering
(including postage, air freight charges and charges for counting and
packing) copies thereof to the initial purchasers and dealers; (iii) the
preparation of the Deposit Agreement, the deposit of the underlying
Ordinary Shares under the Deposit Agreement, the issuance thereunder of
ADSs representing such deposited Ordinary Shares, the issuance of ADRs
evidencing such ADSs and the fees of the Depositary; (iv) all expenses
relating to the road show for the offering of the Securities, including
the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Securities; (v) the preparation, printing,
authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with the
original issuance and sale of the Securities; (vi) the registration of
the Securities under the Exchange Act and the listing of the Ordinary
Shares and the ADSs on the SES and The Nasdaq National Market, Inc.,
respectively; (vii) any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD") (including filing
fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (viii) the fees and expenses of
the Authorized Agent (as defined in Section 15 hereof); (ix) the cost
and charges of any transfer agent or registrar; and (x) all other costs
and
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<PAGE> 18
expenses incident to the performance by the Company of its obligations
under the Underwriting Agreements.
(i) Each U.S. Underwriter agrees that (i) it is not purchasing
any of the U.S. Securities for the account of anyone other than a United
States or Canadian Person, (ii) it has not offered or sold, and will not
offer or sell, directly or indirectly, any of the U.S. Securities or
distribute any U.S. Prospectus to any person outside the United States
or Canada, or to anyone other than a United States or Canadian Person,
and (iii) any dealer to whom it may sell any of the U.S. Securities will
represent that it is not purchasing for the account of anyone other than
a United States or Canadian Person and agree that it will not offer or
resell, directly or indirectly, any of the U.S. Securities outside the
United States or Canada, or to anyone other than a United States or
Canadian Person or to any other dealer who does not so represent and
agree; provided, however, that the foregoing shall not restrict (A)
purchases and sales among the International Underwriters, the U.S.
Underwriters and the Singapore Underwriters 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 Salomon Smith Barney (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 U.S.
Prospectuses or U.S. Preliminary Prospectuses to) United States or
Canadian Persons who are investment advisors, or who otherwise exercise
investment discretion, and who are purchasing for the account of anyone
other than a United States or Canadian Person.
(j) The Company agrees that, in connection with the Directed
Share Program, the Company will ensure that the Directed Shares will be
restricted to the extent required by the NASD or the NASD rules from
sale, transfer, assignment, pledge or hypothecation for a period of
three months following the date of the effectiveness of the Registration
Statement. Salomon Smith Barney will notify the Company in writing as to
which Participants will need to be so restricted. The Company has been
advised by Salomon Smith Barney that there are no Participants who will
need to be so restricted.
(k) The Company covenants with Salomon Smith Barney that the
Company will comply with all applicable securities and other applicable
laws, rules and regulations in each foreign jurisdiction in which the
Directed Shares are offered in connection with the Directed Share
Program.
(II) The agreements of the U.S. Underwriters set forth in
paragraph (I)(i) of this Section 5 shall terminate upon the earlier of the
following events:
(a) a mutual agreement of the U.S. Representatives, the
International Representatives and the Singapore Representatives to
terminate the selling restrictions set forth in paragraph (I)(i) of this
Section 5, paragraph (I)(i) of Section 5 of the International
Underwriting Agreement and Section 2(f) of the Agreement Among U.S.
Underwriters, International Underwriters and Singapore Underwriters; or
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<PAGE> 19
(b) the expiration of a period of 30 days after the Closing Date,
unless (i) the U.S. Representatives shall have given notice to the
Company, 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 (ii) 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 (iii) 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 or the International
Representatives or the Singapore Representatives is given, the
agreements set forth in such paragraph (I)(i) shall survive until the
earlier of (1) the event referred to in clause (a) of this subsection
(II) or (2) the expiration of an additional period of 30 days from the
date of any such notice.
6. Conditions to the Obligations of the U.S. Underwriters. The
obligations of the U.S. Underwriters to purchase the U.S. Underwritten
Securities and the U.S. Option Securities, as the case may be, shall be subject
to the accuracy of the representations and warranties on the part of the Company
contained in this U.S. Underwriting Agreement as of the Execution Time, the
Closing Date and any settlement date pursuant to Section 3 hereof, to the
accuracy of the statements of the Company and made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
under this U.S. Underwriting Agreement and to the following additional
conditions:
(a) If the Registration Statement and the ADR Registration
Statement have not become effective prior to the Execution Time, unless
the U.S. Representatives and the International Representatives agree in
writing to a later time, the Registration Statement and the ADR
Registration Statement will become effective not later than (i) 6:00 PM
New York City time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 PM New York
City time on such date or (ii) 9:30 AM New York City time on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the U.S. Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the U.S. Prospectus, and
any such supplement, will be filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement or the ADR Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) The Company shall have requested and caused Allen & Gledhill,
Singapore counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to
the Representatives substantially in the form set forth in Appendix A.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than
Singapore, the State of New York laws, to the extent they deem proper and
specified in such opinion, upon the opinion of Latham & Watkins
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<PAGE> 20
and (B) as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company and public officials. References to the
Prospectuses in this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Company shall have furnished to the Representatives the
opinion of Latham & Watkins, United States counsel for the Company,
dated the Closing Date substantially in the form of Appendix B.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company and public officials. References to the Prospectuses in this
paragraph (c) include any supplements thereto at the Closing Date.
(d) The Depositary shall have requested and caused Skadden, Arps,
Slate, Meagher & Flom, counsel for the Depositary, to have furnished to
the Representatives their opinion dated the Closing Date and addressed
to the Representatives stating in effect that:
(i) the Deposit Agreement has been duly authorized,
executed and delivered by the Depositary and constitutes a legal,
valid and binding instrument enforceable against the Depositary
in accordance with its terms, except to the extent that
enforcement thereof may be limited by (a) bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws now
or hereafter in effect relating to or affecting creditors' rights
generally and (b) general principles of equity (regardless of
whether enforcement is considered in a proceeding at law or in
equity); the statements in the Prospectuses under the heading
"Description of American Depositary Shares", insofar as such
statements purport to describe the Depositary and summarize
certain provisions of the Deposit Agreement, the ADSs and the
ADRs are fair and accurate;
(ii) the Depositary has full power and authority and legal
right to execute and deliver the Deposit Agreement and to perform
its obligations thereunder;
(iii) upon due issuance and delivery by the Depositary of
the ADRs evidencing the ADSs against the deposit of the Shares in
accordance with the terms of the Deposit Agreement, such ADRs
will be validly issued and will entitle the person in whose name
each ADR is registered to the rights specified therein and in the
Deposit Agreement; and
(iv) the ADR Registration Statement has become effective
under the Act and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the ADR Registration
Statement has been issued, no proceedings for that purpose have
been instituted or threatened, and the ADR Registration
Statement, and each amendment comply as to form in all material
respects with the applicable requirements of the Act and the
rules thereunder.
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<PAGE> 21
(e) The Representatives shall have received from Cleary,
Gottlieb, Steen & Hamilton, counsel for the Underwriters, such opinion
or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the
Securities, the Registration Statement, the ADR Registration Statement,
the Prospectuses (together with any supplement thereto) and other
related matters as the U.S. Representatives may reasonably require, and
the Company 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 carefully examined the Registration Statement, the ADR
Registration Statement, the Prospectuses, any supplements to the
Prospectuses and the Underwriting Agreements and that:
(i) the representations and warranties of the Company in
the Underwriting Agreements are true and correct in all material
respects on and as of the Closing Date with the same effect as if
made on the Closing Date and the Company has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or the ADR Registration Statement has been
issued and no proceedings for that purpose have been instituted
or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectuses (exclusive of any
supplement thereto), there has been no material adverse change in
the condition (financial or otherwise), earnings, business or
properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the
Prospectuses (exclusive of any supplement thereto).
(g) The Company shall have requested and caused KPMG to have
furnished to the Representatives at the Execution Time and at the
Closing Date a letter or letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to
the Representatives, confirming that they are independent accountants
within the meaning of the Act and the applicable rules and regulations
adopted by the Commission thereunder and stating in effect that:
(i) in their opinion the audited financial statements
included in the Registration Statement and the Prospectuses and
reported on by them comply as to form in all material respects
with the applicable accounting requirements of the Act and the
related rules and regulations adopted by the Commission;
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<PAGE> 22
(ii) on the basis of a reading of the latest unaudited
condensed consolidated financial statements made available by the
Company and Chartered Inc.; their limited review, in accordance
with United States generally accepted auditing standards under
Statement on Auditing Standards No. 71 of the nine-month period
ended September 30, 1999, and as at September 30, 1999; carrying
out certain specified procedures (but not an examination in
accordance with U.S. GAAP) which would not necessarily reveal
matters of significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings of the
shareholders, Board of Directors and Audit Committee of the
Company; and inquiries of certain officials of the Company who
have responsibility for financial and accounting matters of the
Company and Chartered Inc. as to transactions and events
subsequent to June 30, 1999, such Company officials advising that
no consolidated financial statements are available as of any date
or for any period subsequent to September 30, 1999, nothing came
to their attention which caused them to believe that:
(1) the unaudited condensed consolidated financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included in the Registration Statement and the
Prospectuses; or
(2) with respect to the period subsequent to September 30,
1999, there were any material changes, at a specified date
not more than five Business Days prior to the date of the
letter, in the capital stock of the Company (except as
disclosed in the Prospectuses under the caption
"Capitalization"), any material increase in long-term debt
or in consolidated net current liabilities or any material
decrease in shareholders' equity of the Company and the
Subsidiaries as compared with the amounts shown on the
September 30, 1999 unaudited condensed consolidated
balance sheet, or for the period from October 1, 1999 to
October 25, 1999 there was any material decrease, as
compared with the corresponding period in the preceding
year, in total revenue of the Company and the
Subsidiaries, excluding CSP, except in all instances for
changes, increases or decreases set forth in such letter,
in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
derived from the general accounting records of the Company and
Chartered Inc. set forth in the Registration Statement and the
Prospectuses, including the information set forth under the
captions "Prospectus Summary," "Risk Factors," "Capitalization,"
"Dilution," "Selected Financial Data," "Management's Discussion
and Analysis of Financial Condition and Results of Operations,"
"Business," "Principal Shareholders," "Relationship with
Singapore Technologies" and "Management," agrees with or is
recomputed from the
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<PAGE> 23
accounting records of the Company and the Subsidiaries, excluding
any questions of legal interpretation.
References to the Prospectuses in this paragraph (g) include any
supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof), and the 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, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Prospectuses (inclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof), the ADR
Registration Statement and the Prospectuses (exclusive of any supplement
thereto).
(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 officer and director of the Company and each
shareholder of the Company listed in Schedule II hereto.
(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
Ordinary Shares in respect of which ADSs to be purchased by the
Underwriters on such Closing Date are to be issued, and the execution,
issuance, countersignature (if applicable) and delivery of the ADRs
evidencing such ADSs pursuant to the Deposit Agreement and such other
matters related thereto as the Representatives shall reasonably request.
(l) The closing of the purchase of the International Underwritten
Securities and the Singapore Underwritten Securities to be issued and
sold by the Company pursuant to the International Underwriting Agreement
and the Singapore Management and Underwriting Agreement, respectively,
shall occur substantially concurrently (giving effect to the time
difference between New York and Singapore) with the closing of the
purchase of the U.S. Underwritten Securities described herein.
(m) The Ordinary Shares shall have been listed and admitted and
authorized for trading on the SES, and the ADSs shall have been included
for quotation on The
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<PAGE> 24
Nasdaq National Market, Inc., 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.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this U.S.
Underwriting Agreement and the International Underwriting Agreement, or if any
of the opinions and certificates mentioned above or elsewhere in this U.S.
Underwriting Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this U.S. Underwriting Agreement and all obligations of the U.S.
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the offices of Latham & Watkins, counsel for the Company at 885
Third Avenue, Suite 1000, New York, New York 10022, on the Closing Date.
7. Commissions, Costs and Expenses. In consideration of the
agreement by the U.S. Underwriters to subscribe for the U.S. Underwritten Shares
and the U.S. Option Shares (subject to the option for the U.S. Option Shares
referred to in the preamble above being duly exercised in accordance with
Section 3 of this U.S. Underwriting Agreement), the Company shall pay to the
U.S. Underwriters on the Closing Date, or on the date on which such Option
Securities are purchased, as the case may be, a combined management and
underwriting commission of 1.8 per cent. and a selling commission of 2.7 per
cent. in respect of the U.S. Underwritten Shares or the U.S. Option Shares, as
the case may be.
8. Reimbursement of Underwriters' Expenses. The Company has
agreed to reimburse the Underwriters severally through Salomon Smith Barney on
demand for out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities (including all fees and
disbursements of counsel and any stamp duties, similar taxes or duties or other
taxes, if any, incurred by the Underwriters in connection with the Directed
Share Program) up to an aggregate maximum of $500,000. In addition, if the sale
of the Securities provided for under the Underwriting Agreements is not
consummated because any condition to the obligations of the U.S. Underwriters or
the International Underwriters set forth in Section 6 of the Underwriting
Agreements is not satisfied, because of any termination pursuant to Section 11
of the Underwriting Agreements or because of any refusal, inability or failure
on the part of the Company to perform any agreement under the Underwriting
Agreements or comply with any provision of the Underwriting Agreements other
than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through Salomon Smith Barney on demand for
all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been reasonably incurred by them in connection with the
proposed purchase and sale of the Securities, up to an aggregate maximum of
$500,000.
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9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
U.S. Underwriter, the directors, officers, employees and agents of each
U.S. Underwriter and each person who controls any U.S. Underwriter
within the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement originally filed or in any amendment thereof,
or in the ADR Registration Statement as originally filed in any
amendment thereof, or in any U.S. or International Preliminary
Prospectus or in either of the Prospectuses, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of any U.S. Underwriter through the U.S.
Representatives specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have ; provided further, that with respect to any untrue
statement or omission of material fact made in any Preliminary
Prospectus, the indemnity agreement contained in this Section 9(a) shall
not inure to the benefit of any U.S. Underwriter from whom the person
asserting any such loss, claim, damage or liability purchased the
Securities, or any person controlling such U.S. Underwriter, to the
extent that any such loss, claim, damage or liability of such U.S.
Underwriter (or any person controlling such U.S. Underwriter) occurs
under the circumstance where it shall have been determined by a court of
competent jurisdiction by final and nonappealable judgment that (w) the
Company had previously furnished copies 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
Salomon Smith Barney and each person, if any, who controls Salomon Smith
Barney within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act ("Salomon Smith Barney Entities") 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 outside
25
<PAGE> 26
of Singapore in connection with the Directed Share 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 connection with the Directed Share 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 from the bad
faith or gross negligence of any Salomon Smith Barney Entities.
(c) Each U.S. Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, or the ADR
Registration Statement, and each person who controls the Company within
the meaning of either the Act or Exchange Act, to the same extent as the
foregoing indemnity to each U.S. Underwriter, but only with reference to
written information relating to such U.S. Underwriter furnished to the
Company by or on behalf of such U.S. Underwriter through the U.S.
Representatives specifically for inclusion in the documents referred to
in the foregoing indemnity. This indemnity agreement will be in addition
to any liability which any U.S. Underwriter may otherwise have. The
Company acknowledges that (A) the names of the Underwriters contained in
any U.S. Prospectus or International Prospectus or the Prospectuses and
their respective participation in the sale of the Securities as set
forth in the two charts under the heading "Underwriting" in any U.S. or
International Prospectus or the Prospectuses, (B) the statements set
forth in the last paragraph on the front cover page of any U.S. or
International Prospectus regarding delivery of the Securities (and the
ADSs representing such Securities) and (C) the statements set forth in
the seventh, tenth and sixteenth paragraphs under the heading
"Underwriting" in any U.S. or International Preliminary Prospectus and
the Prospectuses constitute the only information furnished in writing by
or on behalf of the several U.S. Underwriters for inclusion in any U.S.
or International Preliminary Prospectus or the Prospectuses.
(d) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under
paragraph (a), (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 reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint
26
<PAGE> 27
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 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 Salomon Smith Barney for the defense
of any losses, claims, damages and liabilities arising out of the
Directed Share Program, and all persons, if any, who control such U.S.
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 Underwriters and
controlling persons, which firm shall be designated in writing by
Salomon Smith Barney. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought under this U.S.
Underwriting Agreement (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from liability arising out of such claim, action,
suit or proceeding. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent.
(e) In the event that the indemnity provided in paragraph (a),
(b) or (c) of this Section 9 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the U.S.
Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the U.S.
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by the U.S.
Underwriters from the offering of the U.S. Securities; provided,
however, that in no case shall any U.S. Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of
the U.S. Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities
purchased by such U.S. Underwriter hereunder. If the
27
<PAGE> 28
allocation provided by the immediately preceding sentence is unavailable
for any reason, the Company and the U.S. Underwriters shall contribute
in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company and of the U.S.
Underwriters in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company 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 U.S. Underwriters
shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the U.S.
Prospectus. Relative fault shall be determined by reference to, among
other things, whether any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information provided by the Company or the U.S. Underwriters, the intent
of the parties and their relative knowledge access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company and the U.S. Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (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 9, each person who
controls an U.S. Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an U.S.
Underwriter shall have the same rights to contribution as such U.S.
Underwriter, and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and the ADR Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (e).
10. Default by an Underwriter. If any one or more U.S.
Underwriters shall fail to purchase and pay for any of the U.S. Securities
agreed to be purchased by such U.S. Underwriter or U.S. Underwriters under this
U.S. Underwriting Agreement and such failure to purchase shall constitute a
default in the performance of its or their obligations under this Agreement, the
remaining U.S. Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the amount of U.S. Securities set forth
opposite their names in Schedule I hereto bears to the aggregate amount of U.S.
Securities set forth opposite the names of all the remaining U.S. Underwriters)
the U.S. Securities which the defaulting U.S. Underwriter or U.S. Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of U.S. Securities which the defaulting U.S. Underwriter or
U.S. Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate amount of Securities set forth in Schedule I hereto, the remaining
U.S. Underwriters shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the U.S. Securities, and if such
nondefaulting U.S. Underwriters do not purchase all the U.S. Securities, this
Agreement will terminate without liability to any nondefaulting U.S. Underwriter
or the Company. In the event of a default by any U.S. Underwriter as set forth
in this Section 10, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the U.S. Representatives shall determine in
order that the required changes in the Registration Statement, the ADR
28
<PAGE> 29
Registration Statement and the Prospectuses or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting U.S. Underwriter of its liability, if any, to the Company and any
nondefaulting U.S. Underwriter for damages occasioned by its default under this
U.S. Underwriting Agreement.
11. Termination. This U.S. Underwriting Agreement shall be
subject to termination in the absolute discretion of the U.S. Representatives,
by notice given to the Company prior to delivery of and payment for the U.S.
Securities, if prior to such time (i) trading in the Company's ADSs shall have
been suspended by the Commission or the Nasdaq National Market, Inc., trading in
the Company's Ordinary Shares shall have been suspended by the SES, trading in
securities generally on the New York Stock Exchange, The Nasdaq National Market,
Inc. or the SES shall have been suspended or limited or minimum prices shall
have been established on such exchange or The Nasdaq National Market, Inc., (ii)
a banking moratorium shall have been declared either by U.S. Federal, New York
State or Singapore authorities or (iii) there shall have occurred any outbreak
or escalation of hostilities involving the United States or Singapore,
declaration by the United States or Singapore of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the U.S. Representatives, impracticable or
inadvisable to proceed with the offering or delivery of the prospectus as
contemplated by the U.S. Prospectus (exclusive of any supplement thereto).
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the U.S. Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any U.S. Underwriter or the Company or
any of the officers, directors or controlling persons referred to in Section 9
hereof, and will survive delivery of and payment for the U.S. Securities. The
provisions of Sections 8 and 9 hereof shall survive the termination or
cancellation of this U.S. Underwriting Agreement.
13. Notices. All communications under this U.S. Underwriting
Agreement will be in writing and effective only on receipt, and, if sent to the
U.S. Representatives, will be mailed, delivered or telefaxed c/o Salomon Smith
Barney Inc. General Counsel (fax no.: (212) 816-7912 and confirmed to such
General Counsel at Salomon Smith Barney Inc., 388 Greenwich Street, New York,
New York 10013, U.S.A., Attention: General Counsel; or, if sent to the Company,
will be mailed, delivered or telefaxed to the Legal Department (fax no.: (65)
3622-909) and confirmed to it at 60 Woodlands Industrial Park D, Street 2,
Singapore 738406, Attention: Legal Department.
14. Successors. This U.S. Underwriting Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 9 hereof, and no other person will have any right or obligation under
this U.S. Underwriting Agreement.
15. Jurisdiction. The Company agrees that any suit, action or
proceeding against the Company brought by any U.S. Underwriter, by the
directors, officers, employees and agents of any U.S. Underwriter or by any
person who controls any U.S. Underwriter, arising out of or based upon this U.S.
Underwriting Agreement or the transactions contemplated hereby may
29
<PAGE> 30
be instituted in any New York Court; and waives any objection which it may now
or hereafter have to the laying of venue of any such proceeding, and irrevocably
accepts and submits to the non-exclusive jurisdiction of such courts in any
suit, action or proceeding. The Company has appointed Chartered Semiconductor
Manufacturing, Inc., at 1450 McCandless Drive, Milpitas, California 94035 as its
authorized agent, (the "Authorized Agent") upon whom process may be served in
any suit, action or proceeding arising out of or based upon this Agreement or
the transactions contemplated herein which may be instituted in any New York
Court by any U.S. Underwriter, by the directors, officers, employees and agents
of any U.S. Underwriter or by any person who controls any U.S. Underwriter and
expressly accepts the non-exclusive jurisdiction of any such court in respect of
any such suit, action or proceeding. The Company consents to process being
served in any action or proceeding by mailing a copy thereof by registered or
certified mail to the Authorized Agent. 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
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 Agreement may be instituted by any
U.S. Underwriter, by the directors, officers, employees and agents of any U.S.
Underwriter or by any person who controls any U.S. Underwriter, in any other
court of competent jurisdiction, including those in Singapore.
The provisions of this Section 15 shall survive any termination
of the U.S. Underwriting Agreement, in whole or in part.
16. Applicable Law. This U.S. Underwriting Agreement will be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
17. Currency. Each reference in this U.S. Underwriting Agreement
to U.S. dollars (the "relevant currency") is of the essence. To the fullest
extent permitted by law, the obligations of the Company in respect of any amount
due under this U.S. Underwriting Agreement will, notwithstanding any payment in
any other currency (whether pursuant to a judgment or otherwise), be discharged
only to the extent of the amount in the relevant currency that the party
entitled to receive such payment may, in accordance with its normal procedures,
purchase with the sum paid in such other currency (after any premium and costs
of exchange) on the Business Day immediately following the day on which such
party receives such payment. If the amount in the relevant currency that may be
so purchased for any reason falls short of the amount originally due, the
Company 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 Company not discharged by such payment will, to the fullest extent permitted
by applicable law, be due as a separate and independent obligation and, until
discharged as provided herein, will continue in full force and effect.
18. Waiver of Immunity. To the extent that the Company has or
hereafter may acquire any immunity (sovereign or otherwise) from any legal
action, suit or proceeding,
30
<PAGE> 31
from jurisdiction of any court or from set-off or any legal process (whether
service or notice, attachment in aid or otherwise) with respect to itself or any
of its property, the Company hereby irrevocably waives and agrees not to plead
or claim such immunity in respect of its obligations under this Agreement.
19. Counterparts. This U.S. Underwriting Agreement may be signed
in one or more counterparts, each of which shall constitute an original, and all
of which together shall constitute one and the same agreement.
20. Headings. The section headings used in this U.S. Underwriting
Agreement are for convenience only and shall not affect the construction hereof.
21. Definitions. The terms which follow, when used in this U.S.
Underwriting Agreement, shall have the meanings indicated.
"Act" shall mean the United States Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"ADR" shall mean the certificate(s) issued by the Depositary to
evidence the American Depositary Shares issued under the terms of the
Deposit Agreement.
"ADR Registration Statement" shall mean the registration
statement referred to in paragraph 1(c) above, including all exhibits
thereto, each as amended at the time such part of the registration
statement became effective.
"Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in
The City of New York, New York and Singapore are authorized or obligated
by law, executive order or regulation to close.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement and the ADR Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or becomes effective.
"Exchange Act" shall mean the United States Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Execution Time" shall mean the date and time that this U.S.
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 International Securities.
31
<PAGE> 32
"International Representatives" shall mean the addressees of the
International Underwriting Agreement.
"International Securities" shall mean the International
Underwritten Securities and the International Option Securities.
"International Underwriters" shall mean the several Underwriters
named in Schedule I to the International Underwriting Agreement.
"International Underwriting Agreement" shall mean the
International Underwriting Agreement dated the date hereof related 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 and the
International Option Securities.
"Option Shares" shall mean the U.S. Option Shares and the
International Option Shares.
"Preliminary Prospectuses" and each "Preliminary Prospectus"
shall mean the U.S. Preliminary Prospectus and the International
Preliminary Prospectus.
"Prospectuses" and "each Prospectus" shall mean the U.S.
Prospectus and the International Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended or such Rule
462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Representatives" shall mean the U.S. Representatives and the
International Representatives.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under
the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
32
<PAGE> 33
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Securities" shall mean the U.S. Securities and the International
Securities.
"Shares" shall mean the U.S. Shares and the International Shares.
"Singapore Management and 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.
"Singapore Underwriters" shall mean the several underwriters
named in the Singapore Underwriting Agreement.
"Subsidiary" shall mean each of Chartered Semiconductor
Manufacturing Inc. and Chartered Silicon Partners Pte Ltd.
"Underwriter" and "Underwriters" shall mean the U.S. Underwriters
and the International Underwriters.
"Underwritten Securities" shall mean the U.S. Underwritten
Securities and the International Underwritten Securities.
"Underwritten Shares" shall mean the U.S. Underwritten Shares,
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 referred
to in paragraph 1(a) above and any preliminary prospectus with respect
to the offering of the U.S. Securities, as the case may be, included in
the Registration Statement at the Effective Date that omits Rule 430A
Information.
"U.S. Prospectus" shall mean the prospectus relating to the U.S.
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to
33
<PAGE> 34
Rule 424(b) is required, shall mean the form of final prospectus
relating to the Securities included in the Registration Statement at the
Effective Date.
"U.S. Representatives" shall mean the addressees of the U.S.
Underwriting Agreement.
"U.S. Securities" shall mean the U.S. Underwritten Securities and
the U.S. Option Securities.
"U.S. Underwriters" shall mean the several Underwriters named in
Schedule I to the U.S. Underwriting Agreement.
"U.S. Underwriting Agreement" shall mean this agreement relating
to the sale of the U.S. Securities by the Company to the U.S.
Underwriters.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several U.S. Underwriters.
Very truly yours,
Chartered Semiconductor Manufacturing
Ltd
By: /s/ Chia Song Hwee
---------------------------------------------
Name: Chia Song Hwee
Title: Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Smith Barney Inc.
By: /s/ Richard Blackett
--------------------------------
Name: Richard Blackett
Title: Managing Director
For itself and the other several
U.S. Representatives and U.S. Underwriters
named in Schedule I
to the foregoing Agreement.
34
<PAGE> 35
ANNEX A
List of Subsidiaries
Chartered Semiconductor Manufacturing, Inc.
Chartered Silicon Partners Pte Ltd
35
<PAGE> 36
SCHEDULE I
<TABLE>
<CAPTION>
Number of
U.S. Underwriter U.S. Underwritten Shares
- ---------------- ------------------------
<S> <C>
Salomon Smith Barney Inc............................ 52,500,000
Credit Suisse First Boston Corporation.............. 45,000,000
Hambrecht & Quist LLC............................... 18,750,000
SG Cowen Securities Corporation..................... 18,750,000
SoundView Technology Group, Inc..................... 15,000,000
Total............................................... 150,000,000
</TABLE>
36
<PAGE> 1
EXHIBIT 1.2
EXECUTION COPY
Chartered Semiconductor Manufacturing Ltd
75,000,000 Ordinary Shares*
directly or in the form of American Depositary Shares
(S$0.26 par value)
Each American Depository Share representing
the right to receive ten Ordinary Shares
International Underwriting Agreement
London, England
October 28, 1999
Salomon Brothers International Limited
Credit Suisse First Boston (Singapore) Limited
Hambrecht & Quist LLC
Socitete Generale
SoundView Technology Group, Inc.
Overseas Union Bank Limited
Vickers Ballas & Company Pte Ltd
As International Representatives of the several International Underwriters
c/o Salomon Brothers International Limited
Victoria Plaza
111 Buckingham Palace Road
London SWIW OSB
ENGLAND
Ladies and Gentlemen:
Chartered Semiconductor Manufacturing Ltd, a corporation organized under
the laws of Singapore (the "Company"), proposes to sell to the several
international underwriters named in Schedule I hereto (the "International
Underwriters"), for whom you (the "International Representatives") are acting as
representatives, ordinary shares (the "Ordinary Shares"), S$0.26 par value per
share, of the Company directly or in the form of American Depositary Shares (the
- -----------------------
* Plus an option to purchase from Chartered Semiconductor Manufacturing
Ltd up to 11,250,000 additional Ordinary Shares directly or in the form
of American Depositary Shares to cover overallotments.
<PAGE> 2
"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
11,250,000 additional Ordinary Shares directly or in the form of ADSs to cover
overallotments (the "International Option Shares" and together with the
International Underwritten Shares, the "International Shares" or the
"International Securities").
It is understood that the Company is concurrently entering into
the U.S. Underwriting Agreement (together with this International Underwriting
Agreement, the "Underwriting Agreements") providing for the sale by the Company
of an aggregate of 150,000,000 Ordinary Shares directly or in the form of ADSs
(said Ordinary Shares to be sold by the Company pursuant to the U.S.
Underwriting Agreement being hereinafter called the "U.S. Underwritten Shares",
and together with the International Underwritten Shares, the "Underwritten
Shares") and providing for the grant to the U.S. Underwriters of an option to
purchase from the Company up to 22,500,000 additional Ordinary Shares directly
or in the form of ADSs to cover overallotments (the "U.S. Option Shares" and
together with the U.S. Underwritten Shares, the "U.S. Shares" or the "U.S.
Securities", and the U.S. Securities together with the International Securities,
the "Securities").
It is also understood that the Company is concurrently entering
into the Sinagpore Management and Underwriting Agreement, dated October 29,
1999, providing for the sale by the Company of an aggregate of 25,000,000
Ordinary Shares (said Ordinary Shares to be issued and sold by the Company
pursuant to the Singapore Management and 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 3,750,000 additional Ordinary Shares to cover overallotments (the "Singapore
Option Shares", and together with the Singapore Underwritten Shares, the
"Singapore Shares"). In connection with the Singapore Offering, the Company has
made a listing application to the Stock Exchange of Singapore Limited (the
"SES") and has prepared a prospectus (the "Singapore Prospectus") for
circulation to potential subscribers in Singapore.
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 November 4, 1999 (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. Upon any such
deposit of Ordinary Shares, the Depositary will issue ADSs 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", 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,
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International Shares, Singapore Underwritten Shares, and Shares, as well as, in
each case, to any ADSs representing such securities.
It is further understood and agreed that the U.S. Underwriters,
the International Underwriters and the 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 U.S. Underwriters and the Singapore Underwriters may
purchase from the International Underwriters a portion of the International
Securities to be sold pursuant to this International Underwriting Agreement, the
International Underwriters and the 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 and the U.S. Underwriters and the International
Underwriters may purchase from the Singapore Underwriters a portion of the
Singapore Securities to be sold pursuant to the Singapore Management and
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"; together with the U.S. Offering, the "Combined
Offering"; and the offering of the Singapore Shares (which will be only in the
form of Ordinary Shares) is referred to herein as the "Singapore Offering". The
U.S. Offering, International Offering and Singapore Offering are referred to
collectively as the "Global Offering".
As part of the Global Offering contemplated by this International
Underwriting Agreement, the U.S. Underwriters, the International Underwriters
and the Singapore Underwriters have agreed to reserve up to five per cent. of
the Ordinary Shares (including Ordinary Shares represented by ADSs) out of the
Global Offering for sale to the Company's employees and business associates, to
the directors, officers and employees of the Company's affiliates and to certain
charitable organizations in Singapore (collectively, "Participants"), as set
forth in the Prospectuses under the heading "Underwriting" (the "Directed Share
Program"). The Shares to be sold by the U.S. Underwriters, the International
Underwriters and the Singapore Underwriters pursuant to the Directed Share
Program (the "Directed Shares") will be sold by them at the initial public
offering price. The Directed Shares may be sold by the U.S. Underwriters, the
International Underwriters and the Singapore Underwriters among their respective
underwriting syndicates, and in such event, any commissions may be adjusted upon
agreement of the Company and the representatives of the U.S. Underwriters, the
International Underwriters and the Singapore Underwriters. Any Directed Shares
not orally confirmed for purchase by any Participants by the end of the Business
Day on which the Underwriting Agreements and the Singapore Management and
Underwriting Agreement are executed will be offered to the public by the U.S.
Underwriters, the International Underwriters and the Singapore Underwriters as
set forth in the Prospectuses and the Agreement Among U.S. Underwriters,
International Underwriters and Singapore Underwriters.
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
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<PAGE> 4
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 21 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each International Underwriter as set forth below
in this Section 1.
(a) The Company has filed with the Commission a registration
statement (file number 333-88397) on Form F-1, including the related
U.S. Preliminary Prospectus, for the registration under the Act of the
offering and sale of the U.S. Securities. The Company may have filed one
or more amendments thereto, including the related U.S. Preliminary
Prospectus, which has previously been furnished to you. The Company will
next file with the Commission either (1) prior to the Effective Date of
the Registration Statement, a further amendment to the Registration
Statement (including the form of U.S. Prospectus) or (2) after the
Effective Date of the Registration Statement, the U.S. Prospectus in
accordance with Rules 430A and 424(b). In the case of clause (2), the
Company has included in the Registration Statement, as amended at the
Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules thereunder to be included in the
Registration Statement and the U.S. Prospectus with respect to the
Ordinary Shares and the offering thereof directly or in the form of
ADSs. As filed, such amendment and form of final U.S. Prospectus, or
such U.S. Prospectus, as the case may be, shall contain all Rule 430A
Information, together with all other such required information, with
respect to the underlying Ordinary Shares and the offering thereof
directly or in the form of ADSs, and, except to the extent the
International Representatives shall agree to a modification, shall be in
all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other
changes (beyond that contained in the latest U.S. Preliminary
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein.
It is understood that two forms of prospectuses are to be used in
connection with the Combined Offering and sale of the Securities: one
form of prospectus relating to the U.S. Securities, which are to be
offered and sold to United States and Canadian Persons, and one form of
prospectus relating to the International Securities, which are to be
offered and sold to persons other than United States and Canadian
Persons. The U.S. Prospectus and the International Prospectus are
identical except for the outside front cover page and the outside back
cover page. In addition, the Singapore Prospectus will be used in
connection with the Singapore Offering.
(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
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<PAGE> 5
material respects with the applicable requirements of the Act and the
rules thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, each Prospectus, if not filed
pursuant to Rule 424(b), did not and will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date and any
settlement date, each Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company 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 herein or
in writing to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration Statement
or the Prospectuses (or any supplement thereto). It is understood that
the information that has been furnished in writing by or on behalf of
the several Underwriters for inclusion in the Registration Statement,
Preliminary Prospectuses or the Prospectuses is limited to (A) the names
of the Underwriters and their respective participation in the sale of
the Securities as set forth in the two charts under the heading
"Underwriting" in the Preliminary Prospectuses or Prospectuses, (B) the
statements set forth in the last paragraph on the front cover page of
the Preliminary Prospectuses or Prospectuses regarding delivery of the
Securities (and the ADSs representing such Securities) and (C) the
statements set forth in the seventh, tenth and sixteenth paragraphs
under the heading "Underwriting" in the Preliminary Prospectuses or
Prospectuses.
(c) The Company has filed with the Commission a registration
statement (file number 333-88623) on Form F-6 (the "ADR Registration
Statement") for the registration under the Act of the offering and sale
of the ADSs. The Company may have filed one or more amendments thereto,
each of which has previously been furnished to you. Such ADR
Registration Statement at the time of its effectiveness did or will
comply and on the Closing Date, will comply, in all material respects
with the applicable requirements of the Act and the rules thereunder and
at the time of its Effective Date and at the Execution Time, did not and
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(d) Each of the Company and the Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of
the jurisdiction in which it is incorporated with full corporate power
to own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectuses, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified or be in good
standing would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and the Subsidiaries,
taken as a whole.
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<PAGE> 6
(e) All the outstanding share capital of each Subsidiary has been
duly and validly authorized and issued and is fully paid and
non-assessable and, except for such shares of Chartered Silicon Partners
Pte Ltd ("CSP") as are owned by Hewlett-Packard Europe B.V., or EDB
Investments Pte Ltd which shares do not exceed 49% of the outstanding
voting shares of CSP, all the outstanding shares of capital stock of the
Subsidiaries are owned by the Company directly free and clear of any
perfected security interests, liens or encumbrances.
(f) The Company's authorized, issued and outstanding equity
capitalization is as set forth in the Prospectuses. The outstanding
Ordinary Shares have been duly and validly authorized and issued and are
fully paid and non-assessable. The Securities being sold under the
Underwriting Agreements by the Company have been duly and validly
authorized, and, when issued and delivered to the Depositary or its
nominee in accordance with the Deposit Agreement, the U.S. Underwriters
in accordance with the U.S. Underwriting Agreement and the International
Underwriters in accordance with this International Underwriting
Agreement, will be validly issued, fully paid and non-assessable. The
certificates for the Shares and the ADRs are in valid form. The holders
of outstanding shares of capital stock of the Company are not entitled
to any preemptive or other rights to subscribe for the Shares and the
Securities except for such rights that have been effectively waived.
Except as disclosed in the Prospectuses, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights
to convert any obligations into or exchange any securities for, shares
of capital stock of or ownership interests in the Company are
outstanding. The Securities are freely transferable by the Company to or
for the account of the several Underwriters, 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.
(g) The capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectuses. The
capital restructuring was approved by the Company's shareholders at an
extraordinary general meeting on October 14, 1999 (the "EGM") and has
become effective and has been completed as described in the Prospectuses
under the heading "Capitalization." The Articles of Association
described in the Prospectuses under the heading "Description of Ordinary
Shares" were adopted by the Company's shareholders at the EGM and are in
full force and effect.
(h) Each of the U.S. Underwriting Agreement, this International
Underwriting Agreement, the Singapore Management and Underwriting
Agreement and the Deposit Agreement has been duly authorized, executed
and delivered by the Company.
(i) There is no franchise, contract or other document of a
character required to be described in the Registration Statement, ADR
Registration Statement or Prospectuses, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
description of each such contract, franchise or document in the
Prospectuses is a fair description thereof in all material respects; and
each such franchise, contract or other document to which the Company is
a party, assuming due authorization, execution and delivery thereof by
all other parties thereto, is enforceable against the
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<PAGE> 7
Company in accordance with its terms and is in full force and effect,
and to the Company's knowledge, is a legal, valid and binding obligation
of the other parties thereto. The statements in the Prospectuses under
the heading "Taxation", fairly summarize the matters therein described.
(j) Upon deposit of the underlying International Shares with the
Depositary or its nominee pursuant to the Deposit Agreement in
accordance with the terms thereof, all right, title and interest in such
International Shares will be transferred to the Depositary on behalf of
the International Underwriters, free and clear of all pledges, liens,
security interests, charges, claims or encumbrances of any kind. Upon
issuance by the Depositary of the ADRs evidencing the ADSs against
deposit of underlying Ordinary 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 duly 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 in accordance with 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, other than those arising in favor of the
persons purchasing through the International Underwriters.
(k) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to the Singapore government or any political
subdivision or taxing authority thereof in connection with (A) the
execution and delivery of the Underwriting Agreements, (B) the issuance
of the Ordinary Shares or the ADSs in the manner contemplated by the
Underwriting Agreements, (C) the deposit with the Depositary of the
underlying Ordinary Shares against issuance of ADRs evidencing the ADSs,
(D) the sale and delivery of the Ordinary Shares and the ADSs to the
Underwriters, or (E) except as disclosed in the Prospectuses under the
heading "Taxation--Singapore Taxation", the resale and delivery of such
Ordinary Shares and ADSs by the U.S. Underwriters or the International
Underwriters in the manner contemplated in the Prospectuses.
(l) Except as described in the Prospectuses, all dividends and
other distributions declared and payable on the Ordinary Shares may
under current Singapore law and regulations be paid to the Depositary
and to the holders of Securities, as the case may be, in Singapore
dollars and may be converted into foreign currency that may be
transferred out of Singapore in accordance with the Deposit Agreement.
(m) No consent, approval (including exchange control approval),
authorization, filing with or order of any court or governmental or
regulatory agency or body is required under Singapore or U.S. federal
law or the laws of any state or political subdivision thereof in
connection with the transactions contemplated in the U.S. Underwriting
Agreement, this International Underwriting Agreement, the Singapore
Management and Underwriting Agreement and the Deposit Agreement, except
such (i) as have been obtained under the Act, the Exchange Act, the
Companies Act, Chapter 50 of Singapore, (ii) as may be required under
the blue sky or similar laws of any jurisdiction
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<PAGE> 8
in connection with the purchase and distribution of the Securities by
the Underwriters in the manner contemplated in the Underwriting
Agreements and the Prospectuses and (iii) except as may be required
pursuant to the National Association of Securities Dealers, Inc. rules,
The Nasdaq Stock Market, Inc. rules or the letter from the SES dated
September 15, 1999 granting approval in principle for the listing and
quotation of the entire issued and share capital of the Company on the
Main Board of the SES, which have been obtained or made.
(n) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions contemplated in the U.S.
Underwriting Agreement, this International Underwriting Agreement, the
Singapore Management and Underwriting Agreement or the Deposit
Agreement, nor the fulfillment of the terms hereof or thereof will
conflict with, result in a breach or violation of, or imposition of any
lien, charge or encumbrance upon any property or assets of the Company
or any of the Subsidiaries pursuant to, (i) the memorandum and articles
of association of the Company or the constituent documents of any of the
Subsidiaries, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement, permit,
license, franchise or other agreement, obligation, condition, covenant
or instrument to which the Company or any of the Subsidiaries is a party
or bound or to which its or their property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable to
the Company or any of the Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of the Subsidiaries or any
of its or their properties, except, with respect to clause (ii) or (iii)
above, such as would not individually or in the aggregate, have a
material adverse effect on (A) the performance of this International
Underwriting Agreement or the consummation of any of the transactions
contemplated herein or (B) the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole.
(o) The Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Prospectuses, will not be an "investment company" as
defined in the Investment Company Act of 1940, as amended (the "1940
Act").
(p) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement or the
ADR Registration Statement except for such rights that have been
effectively waived.
(q) The consolidated historical financial statements and
schedules of the Company and the Subsidiaries (including the related
notes) included in the Registration Statement and the Prospectuses
present fairly in all material respects the financial condition, results
of operations, changes in financial position and cash flows as of the
dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been prepared in
conformity with United States generally accepted accounting principles
("U.S. GAAP") applied on a consistent basis throughout the periods
indicated (except as otherwise noted therein). The summary and selected
financial data included in the Registration Statement and the
Prospectuses fairly
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<PAGE> 9
present in all material respects, on the basis stated in the
Registration Statement and the Prospectuses, the information included
therein. The pro forma financial statements included in the Prospectuses
and the Registration Statement include assumptions that provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions and the events described therein, the
related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma adjustments reflect proper application of
those adjustments to the historical financial statement amounts in the
pro forma financial statements included in the Prospectuses and the
Registration Statement. The pro forma financial statements included in
the Prospectuses and the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of
Regulation S-X under the Act and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of those
statements.
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of the Subsidiaries or its or their property is pending
or, to the knowledge of the Company, threatened that (i) could
reasonably be expected to have a material adverse effect on the
performance of this International Underwriting Agreement or the
consummation of any of the transactions contemplated hereby or (ii)
could reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth or contemplated in the Prospectuses
(exclusive of any supplement thereto).
(s) Each of the Company and the Subsidiaries owns or leases all
such properties as are necessary to the conduct of its operations as
presently conducted. Any real property and buildings held under lease by
the Company or any of the Subsidiaries are held under valid, subsisting
and enforceable leases, with such exceptions as are not material and do
not interfere with the use made or proposed to be made of such property
and buildings by the Company or any of the Subsidiaries, in each case
except as described in or contemplated in the Prospectuses.
(t) Neither the Company nor any of the Subsidiaries is in
violation or default of (i) any provision of its Memorandum and Articles
of Association or other constituent documents (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of the Subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
any of the Subsidiaries or any of its or their properties, except, with
respect to clause (ii) or (iii) above, such as would not individually or
in the aggregate, have a material adverse effect on (A) the performance
of this International Underwriting Agreement or the consummation of any
of the transactions contemplated herein or (B) the condition (financial
or otherwise), prospects, earnings, business or properties of the
Company and the Subsidiaries, taken as a whole.
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<PAGE> 10
(u) KPMG Peat Marwick ("KPMG"), who have certified certain
financial statements of the Company and the Subsidiaries and delivered
their report with respect to the audited consolidated financial
statements and schedules included in the Registration Statement and the
Prospectuses, are independent public accountants with respect to the
Company within the meaning of the Act and the applicable published rules
and regulations thereunder.
(v) The Company has not taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities, provided, however, that this provision shall not apply to
any trading or stabilization activities conducted by the Underwriters.
(w) Each of the Company and the Subsidiaries possesses all
licenses, permits, certificates and other authorizations issued by the
appropriate Singapore, U.S., foreign, federal, state or local regulatory
authorities necessary to conduct its business as currently conducted,
except in any case in which the failure so to possess any such license,
permit, certificate or other authorization would not, individually or in
the aggregate, have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole. Neither the Company
nor any of the Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such license, permit,
certificate or authorization which, singly or in the aggregate, if the
subject of an unfavorable decision ruling or findings, would have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in the
Prospectuses (exclusive of any supplement thereto).
(x) Except as described in the Prospectuses, for the periods
described in the Prospectuses, the Company has no material capital
commitments.
(y) No labor dispute with the employees of the Company or any of
the Subsidiaries exists or to the Company's best knowledge, is
threatened, and the Company is not aware of any existing labor
disturbance by the employees of any of its or any of the Subsidiaries',
that could have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(z) Each of the Company and the Subsidiaries is insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses
in which it is engaged. All policies of insurance insuring the Company
or any of the Subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect; each of
the Company and the Subsidiaries is in compliance with the terms of such
policies and instruments in
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<PAGE> 11
all material respects; and there are no claims by the Company or any of
the Subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation
of rights clause. Neither the Company nor any of the Subsidiaries has
been refused any insurance coverage sought or applied for. The Company
has no reason to believe that either the Company or any of the
Subsidiaries will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost
that would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectuses (exclusive of any
supplement thereto).
(aa) None of the Company's Subsidiaries is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on its capital stock, from repaying to the
Company any loans or advances to it from the Company or from
transferring any of its property or assets to the Company or the other
Subsidiary, except for certain restrictions set forth in the Joint
Venture Agreement dated July 4, 1997 by and among the Company,
Hewlett-Packard Europe B.V. and EDB Investments Pte Ltd (as amended) or
as described in or contemplated in the Prospectuses.
(bb) The Company and the Subsidiaries own, possess, license or
have other rights to use, on reasonable terms, all patents, patent
applications, trademarks, service marks, trade and service mark
registrations, trade names, licenses, copyrights, inventions, trade
secrets, technology, know-how and other intellectual property
(collectively, the "Intellectual Property") necessary for the conduct of
the Company's business as now conducted, and as described in the
Prospectuses, except where the failure to so own, possess, license or
have other rights to use would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from the ordinary course of business. Except as
set forth in the Prospectuses under the captions "Risk Factors" or
"Business Intellectual Property," to the Company's best knowledge, (a)
there are no rights of third parties to any such Intellectual Property;
(b) there is no material infringement by third parties of any such
Intellectual Property; (c) there is no pending or threatened action,
suit, proceeding or claim by others challenging the Company's rights in
or to any such Intellectual Property, and the Company is unaware of any
facts which would form a reasonable basis for any such claim; (d) there
is no pending or threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property, and
the Company is unaware of any facts which would form a reasonable basis
for any such claim; (e) there is no pending or threatened action, suit,
proceeding or claim by others that the Company infringes or otherwise
violates any patent, trademark, copyright, trade secret or other
proprietary right of others in any Intellectual Property, and the
Company is unaware of any other fact which would form a reasonable basis
for any such claim; and (f) there is no prior art of which the Company
is aware that may render any U.S. patent held by the Company invalid or
any U.S. patent application held by the Company unpatentable which has
not been disclosed to the U.S.
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Patent and Trademark Office, in the case of any of (a) through (f)
above, which would have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole, whether or not
arising from the ordinary course of business.
(cc) Each of the Company and the Subsidiaries have implemented a
comprehensive, detailed program to analyze and address the risk that the
computer hardware and software used by them may be unable to operate
correctly with respect to calendar dates falling on or after January 1,
2000 in the same manner, and with the same functionality, as with
respect to calendar dates falling on or before December 31, 1999 (the
"Year 2000 Problem"), and the Company and each of the Subsidiaries
reasonably believes that such program will address the Year 2000 Problem
with respect to the material operations of the Company on a timely basis
and will not have a material adverse effect upon the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole.
(dd) The Company has filed all Singapore, U.S., foreign, federal,
state and local tax returns that are required to be filed or has
requested extensions thereof, except in any case in which the failure so
to file would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectuses (exclusive of any
supplement thereto) and has paid all taxes required to be paid by it and
any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good
faith or as would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectuses (exclusive of any
supplement thereto).
(ee) No Underwriter or holder of Securities is or will be deemed
to be resident, domiciled, carrying on business or subject to taxation
in Singapore solely by reason of the execution, delivery, consummation
or enforcement of this International Underwriting Agreement.
(ff) Each of the Company and the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with U.S. generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
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(gg) 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 Share Program, and that (ii) no
authorization, approval, consent, license, order, registration or
qualification of or with any government, governmental instrumentality or
court, other than such as have been obtained, is necessary under the
securities laws and regulations of foreign jurisdictions in which the
Directed Shares are offered outside the United States.
(hh) The Company and the Subsidiaries are (i) in compliance with
any and all Singapore laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws")
applicable to conduct their respective businesses, (ii) have received
and are in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) have not received notice of any actual
or potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability would not, individually or in the
aggregate, have a material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
the Prospectuses (exclusive of any supplement thereto).
(ii) Each of the Company and the Subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Section 302
of the United States Employee Retirement Income Security Act of 1974
("ERISA") and the regulations and published interpretations thereunder
with respect to each "plan" (as defined in Section 3(3) of ERISA and the
United States Internal Revenue Code of 1986, as amended and such
regulations and published interpretations) in which employees of the
Company and the Subsidiaries are eligible to participate (other than any
"multi-employer plan" within the meaning of Section 4001(a)(3) of ERISA)
and each such plan (other than any "multi-employer plan" within the
meaning of Section 4001(a)(3) of ERISA) is in compliance in all material
respects with the presently applicable provisions of ERISA and such
regulations and published interpretations, except where such failure to
fulfill or such non-compliance would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole. The Company and the Subsidiaries
have not incurred any unpaid liability to the Pension Benefit Guaranty
Corporation (other than for the payment of premiums in the ordinary
course) or to any such plan under Title IV of ERISA, except such as
would not, individually or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole.
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<PAGE> 14
(jj) The Subsidiaries are the only significant subsidiaries of
the Company as defined by Rule 1.02 of Regulation S-X.
Any certificate signed by any officer of the Company or any of
the Subsidiaries, in his or her capacity as an officer of the Company or
any of the Subsidiaries, and delivered to you or counsel for the
International Underwriters in connection with this International
Underwriting Agreement shall be deemed to be a representation and
warranty by the Company to each International Underwriter as to the
matters covered thereby.
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 agrees 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
US$20.00 per ADS and S$3.344 per Ordinary Share, the amount of
International Underwritten Shares set forth opposite such International
Underwriter's name in Schedule I to this International Underwriting
Agreement.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this International
Underwriting Agreement, the Company hereby grants an option to the
several International Underwriters to purchase, severally and not
jointly, up to 11,250,000 International Option Securities at the same
purchase price per ADS and per Ordinary Share as the International
Underwriters shall pay for the International Underwritten Securities.
Said option may be exercised to cover overallotments in the sale of the
International Underwritten Securities by the International Underwriters.
Said option may be exercised in whole or in part at any time (but not
more than once) on or before the 30th day after the date of the
Prospectuses upon written or telegraphic notice by the International
Representatives to the Company 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 fifth Business Day prior to the Closing Date) shall be made at
9:00 AM, New York City time, on November 4, 1999, or such later date not later
than five Business Days after the foregoing date as the International
Representatives shall designate, which date and time may be postponed by
agreement among the International Representatives and the Company or as provided
in Section 9 hereof (such date and time of delivery and payment for the
International Securities being herein called in this
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<PAGE> 15
International Underwriting Agreement, the "Closing Date"). Delivery of the
International Securities shall be made to the International Representatives for
the respective accounts of the several International Underwriters, or if the
International Underwriters so elect, to the Depositary or its nominee pursuant
to the Deposit Agreement, in either case, against payment by the several
International Underwriters through the International Representatives of the
respective aggregate purchase prices 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 to the accounts specified by the Company. Delivery of the ADRs
representing International Underwritten Securities and the International Option
Securities shall be made through the facilities of The Depository Trust Company
unless the International Representatives shall otherwise instruct at least one
Business Day in advance of the Closing Date. ADRs representing the International
Securities and any International Shares not delivered to the Depositary or its
nominee pursuant to the Deposit Agreement shall be registered in such names and
in such denominations as Salomon Smith Barney Inc. ("Salomon Smith Barney") may
request not less than two Business Days in advance of the Closing Date.
It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the U.S. Underwriting Agreement and
the Singapore Management and 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 Management and Underwriting Agreement for any U.S.
Option Securities and Singapore Option Securities occurring after the Closing
Date.
If the option provided for in Section 2(b) hereof is exercised
after the fifth Business Day prior to the Closing Date, the Company will deliver
(at the expense of the Company) to the International Representatives, c/o
Salomon Smith Barney at 388 Greenwich Street, New York, New York 10013, on the
date specified by the International Representatives (which shall be within five
Business Days after exercise of said option), ADRs representing the
International Option Securities and any International Option Shares not
delivered to the Depositary or its nominee pursuant to the Deposit Agreement in
such names and denominations as the International Representatives shall have
requested against payment by the several International Underwriters through the
International Representatives of the purchase price thereof to or upon the order
of the Company by wire transfer of U.S. dollars 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.
4. Offering by Underwriters. It is understood that the several
International Underwriters propose to offer the International Securities for
sale to the public as set forth in the Prospectuses.
5. Agreements. (I) The Company agrees with the several
International Underwriters that:
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<PAGE> 16
(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 U.S.
Representatives of such timely filing. The Company will promptly advise
the International Representatives (1) when the Registration Statement
and the ADR Registration Statement, if not effective at the Execution
Time, shall have become effective, (2) when the U.S. Prospectus, and any
supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement or ADR Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement or the ADR
Registration Statement shall have been filed or become effective, (4) of
any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement or ADR
Registration Statement, or for any supplement to the U.S. Prospectus or
for any additional information, (5) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the ADR Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result
of which the U.S. Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or the ADR Registration
Statement or supplement the U.S. Prospectus to comply with the Act or
the rules thereunder, the Company promptly will (1) notify the
International Representatives of any such event; (2) prepare and file
with the Commission, subject to the second sentence of paragraph (i)(a)
of this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance; and (3) supply any
supplemental Prospectuses to you in such quantities as you may
reasonably request.
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<PAGE> 17
(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 and the
Subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 under the Act.
(d) The Company will furnish to the International Representatives
and counsel for the International Underwriters, without charge, signed
copies of the Registration Statement and the ADR Registration Statement
(including exhibits thereto) and to each other International Underwriter
a copy of the Registration Statement and the ADR Registration Statement
(without exhibits thereto) and, so long as delivery of a prospectus by
an International Underwriter or dealer may be required by the Act, as
many copies of each International Preliminary Prospectus and
International 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 designate and will maintain such
qualifications in effect so long as required for the distribution of the
International Securities, provided, however, that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where
it is not now so qualified or to take any action that would subject it
to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not
now so subject.
(f) Except pursuant to the Underwriting Agreements, the Company
will not, without the prior written consent of Salomon Smith Barney
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 and may file a Form S-8 with respect thereto.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Ordinary Shares or the
ADSs.
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<PAGE> 18
(h) The Company agrees to pay the costs and expenses relating to
the following matters: (i) the fees and expenses of its counsel
(including local counsel) and accountants in connection with the issue
of the Securities, (ii) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement and the ADR
Registration Statement (including financial statements and exhibits
thereto), each Preliminary Prospectus, each Prospectus, and each
amendment or supplement to any of them and mailing and delivering
(including postage, air freight charges and charges for counting and
packing) copies thereof to the initial purchasers and dealers; (iii) the
preparation of the Deposit Agreement, the deposit of the underlying
Ordinary Shares under the Deposit Agreement, the issuance thereunder of
ADSs representing such deposited Ordinary Shares, the issuance of ADRs
evidencing such ADSs and the fees of the Depositary; (iv) all expenses
relating to the road show for the offering of the Securities, including
the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Securities; (v) the preparation, printing,
authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with the
original issuance and sale of the Securities; (vi) the registration of
the Securities under the Exchange Act and the listing of the Ordinary
Shares and the ADSs on the SES and The Nasdaq National Market, Inc.,
respectively; (vii) any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD") (including filing
fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (viii) the fees and expenses of
the Authorized Agent (as defined in Section 15 hereof); (ix) the cost
and charges of any transfer agent or registrar; and (x) all other costs
and expenses incident to the performance by the Company of its
obligations under the Underwriting Agreements.
(i) Each International Underwriter agrees that (i) it is not
purchasing any of the International Securities for the account of any
United States or Canadian Person, (ii) it has not offered or sold, and
will not offer or sell, directly or indirectly, any of the International
Securities or distribute any International Prospectus to any person in
the United States or Canada, or to any United States or Canadian Person,
and (iii) any dealer to whom it may sell any of the International
Securities will represent that it is not purchasing for the account of
any United States or Canadian Person and agree that it will not offer or
resell, directly or indirectly, any of the International Securities in
the United States or Canada, or to any United States or Canadian Person
or to any other dealer who does not so represent and agree; provided,
however, that the foregoing shall not restrict (A) purchases and sales
among the International Underwriters, the U.S. Underwriters and the
Singapore Underwriters 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 Salomon Smith Barney (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 Prospectuses or
International 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.
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<PAGE> 19
(j) The Company agrees that, in connection with the Directed
Share Program, the Company will ensure that the Directed Shares will be
restricted to the extent required by the NASD or the NASD rules from
sale, transfer, assignment, pledge or hypothecation for a period of
three months following the date of the effectiveness of the Registration
Statement. Salomon Smith Barney will notify the Company in writing as to
which Participants will need to be so restricted. The Company has been
advised by Salomon Smith Barney that there are no Participants who will
need to be so restricted.
(k) The Company covenants with Salomon Smith Barney that the
Company will comply with all applicable securities and other applicable
laws, rules and regulations in each foreign jurisdiction in which the
Directed Shares are offered in connection with the Directed Share
Program.
(II) The agreements of the International Underwriters set forth
in paragraph (i) of this Section 5 shall terminate upon the earlier of the
following events:
(a) a mutual agreement of the U.S. Representatives, International
Representatives and Singapore Representatives to terminate the selling
restrictions set forth in paragraph (I)(i) of this Section 5, paragraph
(I)(i) of Section 5 of the U.S. Underwriting Agreement and Section 2(f)
of the Agreement Among U.S. Underwriters, International Underwriters or
Singapore Underwriters; or
(b) the expiration of a period of 30 days after the Closing Date,
unless (i) the International Representatives shall have given notice to
the Company, 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 (ii) 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 (iii) 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
International Representatives or the U.S. Representatives or the
Singapore Representatives is given, the agreements set forth in such
paragraph (I)(i) shall survive until the earlier of (1) the event
referred to in clause (a) of this subsection (II) or (2) the expiration
of an additional period of 30 days from the date of any such notice.
(III) Each International Underwriter severally represents and
agrees that:
(a) it has not offered or sold and, prior to the expiry of six
months from the closing of the offering of the International Securities,
will not offer or sell by means of any document any International
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (whether as principal or agent) for the purpose
of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities
Regulations 1995;
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<PAGE> 20
(b) it has complied and will comply with all applicable
provisions of the Financial Services Act 1986 with respect to anything
done by you in relation to the International Securities in, from or
otherwise involving the United Kingdom;
(c) it has only issued or passed on, and will only issue or pass
on, in the United Kingdom any document received by it in connection with
the issue of the International Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1996 (as amended), or a
person to whom such document may otherwise lawfully be issued or passed
on;
(d) it has not offered or sold and will not offer or sell,
directly or indirectly, in Japan or to or for the account of any
resident of Japan any International Securities, except (A) under an
exemption from the registration requirements of the Securities and
Exchange Law of Japan and (B) in compliance with any other applicable
requirements of Japanese law;
(e) it will send to any dealer who purchases from it any
International Securities a notice stating in substance that, by
purchasing such International Securities, the dealer represents and
agrees that it has not offered or sold, and will not offer or sell, any
of the Shares or ADSs, directly or indirectly, in Japan or to or for the
account of any resident thereof except pursuant to an exemption from the
registration requirements of the Securities and Exchange Law of Japan,
and that the dealer will send to any other dealer to whom it sells any
International Securities a notice containing substantially the same
statement as is contained in this sentence;
(f) it has not offered or sold and will not offer or sell any
International Securities in Hong Kong by means of any document, other
than to persons whose ordinary business it is to buy or sell shares or
debentures, whether as principal or agent, except in circumstances which
do not constitute an offer to the public within the meaning of the
Companies Ordinance (Chapter 32) of Hong Kong;
(g) it has not issued and will not issue any invitation or
advertisement relating to the International Securities in Hong Kong,
except if permitted to do so by the securities law of Hong Kong or to be
disposed of in Hong Kong only to persons whose business involves the
acquisition, disposal or holding of shares whether as principal or
agent; and
(h) it has complied and will comply with all applicable laws and
regulations and has made or obtained or will make or obtain all
necessary filings, consents or approvals in each jurisdiction in which
it purchases, offers, sells or delivers International Securities
(including, without limitation, any applicable requirements relating to
the delivery of the Preliminary Prospectuses or Prospectuses), in each
case at its own expense; and
(i) it has not and will not offer or sell any International
Securities or distribute any document or other material relating to the
International Securities, either directly or indirectly, to the public
or any member of the public in Singapore other than (A) to an
institutional investor or other person specified in Section 106C of the
Companies Act, Chapter 50 of Singapore, (B) to a sophisticated investor
as specified in, and in accordance
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<PAGE> 21
with the conditions, specified in Section 106D of the Companies Act
Chapter 50 of Singapore or (C) otherwise pursuant to, and in accordance
with the conditions of, any other provision of the Companies Act Chapter
50 of Singapore.
6. Conditions to the Obligations of the International
Underwriters. The obligations of the International Underwriters to
purchase the International Underwritten Securities and the International
Option Securities, as the case may be, shall be subject to the accuracy
of the representations and warranties on the part of the Company
contained in this International Underwriting Agreement as of the
Execution Time, the Closing Date and any settlement date pursuant to
Section 3 hereof, to the accuracy of the statements of the Company and
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 and the International Representatives agree in
writing to a later time, the Registration Statement and the ADR
Registration Statement will become effective not later than (i) 6:00 PM
New York City time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 PM New York
City time on such date or (ii) 9:30 AM New York City time on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the U.S. Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the U.S. Prospectus, and
any such supplement, will be filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement or the ADR Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) The Company shall have requested and caused Allen & Gledhill,
Singapore counsel for the Company, to have furnished to the
Representatives their opinion, to the effect set forth in the U.S.
Underwriting Agreement under Section 6(b).
(c) The Company shall have furnished to the Representatives the
opinion of Latham & Watkins, United States counsel for the Company, to
the effect set forth in the U.S. Underwriting Agreement under Section
6(c).
(d) The Depositary shall have requested and caused Skadden, Arps,
Slate, Meagher & Flom, counsel for the Depositary, to have furnished to
the Representatives their opinion, to the effect set forth in the U.S.
Underwriting Agreement under Section 6(d).
(e) The Representatives shall have received from Cleary,
Gottlieb, Steen & Hamilton, counsel for the Underwriters, such opinion
or opinions, dated the Closing Date and addressed to the
Representatives, with respect to the issuance and sale of the
Securities, the Registration Statement, the ADR Registration Statement,
the Prospectuses (together with any supplement thereto) and other
related matters as the International
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<PAGE> 22
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 carefully examined the Registration Statement, the ADR
Registration Statement, the Prospectuses, any supplements to the
Prospectuses and the Underwriting Agreements and that:
(i) the representations and warranties of the Company in
the Underwriting Agreements are true and correct in all material
respects on and as of the Closing Date with the same effect as if
made on the Closing Date and the Company has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or the ADR Registration Statement has been
issued and no proceedings for that purpose have been instituted
or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectuses (exclusive of any
supplement thereto), there has been no material adverse change in
the condition (financial or otherwise), earnings, business or
properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the
Prospectuses (exclusive of any supplement thereto).
(g) The Company shall have requested and caused KPMG to have
furnished to the Representatives at the Execution Time and at the
Closing Date a letter or letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to
the Representatives, to the effect set forth in Section 6(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, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Prospectuses (inclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of
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<PAGE> 23
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 officer and director of the Company and each
shareholder of the Company listed in Schedule II hereto.
(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
Ordinary Shares in respect of which ADSs to be purchased by the
Underwriters on such Closing Date are to be issued, and the execution,
issuance, countersignature (if applicable) and delivery of the ADRs
evidencing such ADSs pursuant to the Deposit Agreement and such other
matters related thereto as the Representatives shall reasonably request.
(l) The closing of the purchase of the U.S. Underwritten
Securities and the Singapore Underwritten Securities to be issued and
sold by the Company pursuant to the U.S. Underwriting Agreement and the
Singapore Management and Underwriting Agreement, respectively, shall
occur substantially concurrently (giving effect to the time difference
between New York and Singapore) with the closing of the purchase of the
International Underwritten Securities described herein.
(m) The Ordinary Shares shall have been listed and admitted and
authorized for trading on the SES, and the ADSs shall have been included
for quotation on The Nasdaq National Market, Inc., and satisfactory
evidence of all such actions shall have been provided to the
Representatives.
(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.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
International Underwriting Agreement and the U.S. Underwriting Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
International Underwriting Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this International Underwriting Agreement and all
obligations of the International Underwriters hereunder may be canceled at, or
at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
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<PAGE> 24
The documents required to be delivered by this Section 6 will be
delivered at the offices of Latham & Watkins, counsel for the Company at 885
Third Avenue, Suite 1000, New York, New York 10022, on the Closing Date.
7. Commissions, Costs and Expenses. In consideration of the
agreement by the International Underwriters to subscribe for the International
Underwritten Shares and the International Option Shares (subject to the option
for the International Option Shares referred to in the preamble above being duly
exercised in accordance with Section 3 of this International Underwriting
Agreement), the Company shall pay to the International Underwriters on the
Closing Date, or on the date on which such Option Securities are purchased, as
the case may be, a combined management and underwriting commission of 1.8 per
cent. and a selling commission of 2.7 per cent. in respect of the International
Underwritten Shares or the International Option Shares, as the case may be.
8. Reimbursement of Underwriters' Expenses. The Company has
agreed to reimburse the Underwriters severally through Salomon Smith Barney on
demand for out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities (including all fees and
disbursements of counsel and any stamp duties, similar taxes or duties or other
taxes, if any, incurred by the Underwriters in connection with the Directed
Share Program) up to an aggregate maximum of $500,000. In addition, if the sale
of the Securities provided for under the Underwriting Agreements is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 6 of the Underwriting Agreements is not satisfied, because of
any termination pursuant to Section 11 of the Underwriting Agreements or because
of any refusal, inability or failure on the part of the Company to perform any
agreement under the Underwriting Agreements or comply with any provision of the
Underwriting Agreements other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally through
Salomon Smith Barney on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been reasonably
incurred by them in connection with the proposed purchase and sale of the
Securities, up to an aggregate maximum of $500,000.
9. 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 originally filed
or in any amendment thereof, or in the ADR Registration Statement as
originally filed in any amendment thereof, or in any U.S. or
International Preliminary Prospectus or in either of the Prospectuses,
or in any amendment thereof or supplement thereto, or arise out of or
are based upon the omission or alleged omission to
24
<PAGE> 25
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 9(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, or any person controlling such International Underwriter, to
the extent that any such loss, claim, damage or liability of such
International Underwriter (or any person controlling such International
Underwriter) occurs under the circumstance where it shall have been
determined by a court of competent jurisdiction by final and
nonappealable judgment that (w) the Company had previously furnished
copies of the Prospectus to the Representatives, (x) delivery of the
Prospectus was required by the Act to be made to such person, (y) the
untrue statement or omission of a material fact contained in the
Preliminary Prospectus was corrected in the Prospectus and (z) there was
not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of
the Prospectus.
(b) The Company agrees to indemnify and hold harmless Salomon
Smith Barney and each person, if any, who controls Salomon Smith Barney
within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act ("Salomon Smith Barney Entities") 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 outside of Singapore in
connection with the Directed Share 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
connection with the Directed Share 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 from the bad faith or
gross negligence of any Salomon Smith Barney Entities.
(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, and each person who controls the Company
within the meaning of either the Act or Exchange Act, to the
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<PAGE> 26
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 (A) the names of the Underwriters
contained in any U.S. Prospectus or International Prospectus or the
Prospectuses and their respective participation in the sale of the
Securities as set forth in the two charts under the heading
"Underwriting" in any U.S. or International Prospectus or the
Prospectuses, (B) the statements set forth in the last paragraph on the
front cover page of any U.S. or International Prospectus regarding
delivery of the Securities (and the ADSs representing such Securities)
and (C) the statements set forth in the seventh, tenth and sixteenth
paragraphs under the heading "Underwriting" in any U.S. or International
Preliminary Prospectus and the Prospectuses constitute the only
information furnished in writing by or on behalf of the several
International Underwriters for inclusion in any U.S. or International
Preliminary Prospectus or the Prospectuses.
(d) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under
paragraph (a), (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 reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual
or potential defendants in, or targets of any such action include both
the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action
or (iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party.
Notwithstanding anything contained herein to the contrary, if indemnity
may be sought pursuant to paragraph (b)
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<PAGE> 27
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 Salomon
Smith Barney for the defense of any losses, claims, damages and
liabilities arising out of the Directed Share 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 Underwriters and controlling persons, which firm shall be
designated in writing by Salomon Smith Barney. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding
in respect of which indemnification or contribution may be sought under
this International Underwriting Agreement (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from liability arising
out of such claim, action, suit or proceeding. The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent.
(e) In the event that the indemnity provided in paragraph (a),
(b) or (c) of this Section 9 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 and by the International Underwriters from the offering of the
International Securities; provided, however, that in no case shall any
International Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the International
Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
International Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
Company and the International Underwriters shall contribute in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and of the International
Underwriters in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company 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 alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company or the
International Underwriters, the intent of the
27
<PAGE> 28
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 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 9, each
person who controls an U.S. Underwriter within the meaning of either the
Act or the Exchange Act and each director, officer, employee and agent
of an International Underwriter shall have the same rights to
contribution as such International Underwriter, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and the ADR Registration Statement and each
director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions
of this paragraph (e).
10. Default by an Underwriter. If any one or more International
Underwriters shall fail to purchase and pay for any of the International
Securities agreed to be purchased by such International Underwriter or
International Underwriters under this International Underwriting Agreement and
such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining International Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of International Securities set forth opposite
their names in Schedule I hereto bears to the aggregate amount of International
Securities set forth opposite the names of all the remaining International
Underwriters) the International Securities which the defaulting International
Underwriter or International Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of International
Securities which the defaulting International Underwriter or International
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule I hereto, the remaining International
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the International Securities, and if such
nondefaulting International Underwriters do not purchase all the International
Securities, this Agreement will terminate without liability to any nondefaulting
International Underwriter or the Company. In the event of a default by any
International Underwriter as set forth in this Section 10, the Closing Date
shall be postponed for such period, not exceeding five Business Days, as the
International Representatives shall determine in order that the required changes
in the Registration Statement, the ADR Registration Statement and the
Prospectuses or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting International
Underwriter of its liability, if any, to the Company and any nondefaulting
International Underwriter for damages occasioned by its default under this
International Underwriting Agreement.
11. Termination. This International Underwriting Agreement shall
be subject to termination in the absolute discretion of the International
Representatives, by notice given to the Company prior to delivery of and payment
for the International Securities, if prior to such time (i) trading in the
Company's ADSs shall have been suspended by the Commission or the
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<PAGE> 29
Nasdaq National Market, Inc., trading in the Company's Ordinary Shares shall
have been suspended by the SES, trading in securities generally on the New York
Stock Exchange, The Nasdaq National Market, Inc. or the SES shall have been
suspended or limited or minimum prices shall have been established on such
exchange or The Nasdaq National Market, Inc., (ii) a banking moratorium shall
have been declared either by U.S. Federal, New York State or Singapore
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities involving the United States or Singapore, declaration by the United
States or Singapore of a national emergency or war or other calamity or crisis
the effect of which on financial markets is such as to make it, in the sole
judgment of the International Representatives, impracticable or inadvisable to
proceed with the offering or delivery of the prospectus as contemplated by the
International Prospectus (exclusive of any supplement thereto).
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the International Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any International Underwriter or
the Company or any of the officers, directors or controlling persons referred to
in Section 9 hereof, and will survive delivery of and payment for the
International Securities. The provisions of Sections 8 and 9 hereof shall
survive the termination or cancellation of this International Underwriting
Agreement.
13. Notices. All communications under this International
Underwriting Agreement will be in writing and effective only on receipt, and, if
sent to the International Representatives, will be mailed, delivered or
telefaxed c/o Salomon Smith Barney Inc. General Counsel (fax no.: (212) 816-7912
and confirmed to such General Counsel at Salomon Brothers International Limited
General Counsel (fax no.: (44) 171-721-2870) and confirmed to such General
Counsel at Salomon Brothers International Limited, Victoria Plaza, 111
Buckingham Palace Road, London SW1W 0SB ENGLAND, Attention: General Counsel; or,
if sent to the Company, will be mailed, delivered or telefaxed to the Legal
Department (fax no.: (65) 3622-909) and confirmed to it at 60 Woodlands
Industrial Park D, Street 2, Singapore 738406, Attention: Legal Department.
14. Successors. This International Underwriting Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and controlling persons
referred to in Section 9 hereof, and no other person will have any right or
obligation under this International Underwriting Agreement.
15. Jurisdiction. 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 accepts and submits to the non-exclusive jurisdiction of such courts
in any suit, action or proceeding. The Company has appointed Chartered
Semiconductor Manufacturing, Inc., at 1450 McCandless Drive, Milpitas,
California 95035 as its authorized agent, (the "Authorized Agent") upon whom
process may be served in any suit, action or
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<PAGE> 30
proceeding arising out of or based upon this Agreement or the transactions
contemplated herein which may be instituted in any New York Court by any
International Underwriter, by the directors, officers, employees and agents of
any International Underwriter or by any person who controls any International
Underwriter and expressly accepts the non-exclusive jurisdiction of any such
court in respect of any such suit, action or proceeding. The Company consents to
process being served in any action or proceeding by mailing a copy thereof by
registered or certified mail, to the Authorized Agent. 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 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 Agreement may be
instituted by any International Underwriter, by the directors, officers,
employees and agents of any International Underwriter or by any person who
controls any International Underwriter, in any other court of competent
jurisdiction, including those in Singapore.
The provisions of this Section 15 shall survive any termination
of the International Underwriting Agreement, in whole or in part.
16. Applicable Law. This International Underwriting Agreement
will be governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be performed within the State of
New York.
17. Currency. Each reference in this International Underwriting
Agreement to U.S. dollars (the "relevant currency") is of the essence. To the
fullest extent permitted by law, the obligations of the Company in respect of
any amount due under this International Underwriting Agreement will,
notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in the
relevant currency that the party entitled to receive such payment may, in
accordance with its normal procedures, purchase with the sum paid in such other
currency (after any premium and costs of exchange) on the Business Day
immediately following the day on which such party receives such payment. If the
amount in the relevant currency that may be so purchased for any reason falls
short of the amount originally due, the Company 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 Company not discharged by such
payment will, to the fullest extent permitted by applicable law, be due as a
separate and independent obligation and, until discharged as provided herein,
will continue in full force and effect.
18. Waiver of Immunity. To the extent that the Company has or
hereafter may acquire any immunity (sovereign or otherwise) from any legal
action, suit or proceeding, from jurisdiction of any court or from set-off or
any legal process (whether service or notice, attachment in aid or otherwise)
with respect to itself or any of its property, the Company hereby
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<PAGE> 31
irrevocably waives and agrees not to plead or claim such immunity in respect of
its obligations under this Agreement.
19. Counterparts. This International Underwriting Agreement may
be signed in one or more counterparts, each of which shall constitute an
original, and all of which together shall constitute one and the same agreement.
20. Headings. The section headings used in this International
Underwriting Agreement are for convenience only and shall not affect the
construction hereof.
21. Definitions. The terms which follow, when used in this
International Underwriting Agreement, shall have the meanings indicated.
"Act" shall mean the United States Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"ADR" shall mean the certificate(s) issued by the Depositary to
evidence the American Depositary Shares issued under the terms of the
Deposit Agreement.
"ADR Registration Statement" shall mean the registration
statement referred to in paragraph 1(c) above, including all exhibits
thereto, each as amended at the time such part of the registration
statement became effective.
"Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in
The City of New York, New York and Singapore are authorized or obligated
by law, executive order or regulation to close.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement and the ADR Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or becomes effective.
"Exchange Act" shall mean the United States Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Execution Time" shall mean the date and time that this
International Underwriting Agreement is executed and delivered by the
parties hereto.
"International 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 International Securities.
"International Representatives" shall mean the addressees of this
International Underwriting Agreement.
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"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
International Underwriting Agreement related 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 and the
International Option Securities.
"Option Shares" shall mean the U.S. Option Shares and the
International Option Shares.
"Preliminary Prospectuses" and each "Preliminary Prospectus"
shall mean the U.S. Preliminary Prospectus and the International
Preliminary Prospectus.
"Prospectuses" and "each Prospectus" shall mean the U.S.
Prospectus and the International Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended or such Rule
462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Representatives" shall mean the U.S. Representatives and the
International Representatives.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under
the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Securities" shall mean the U.S. Securities and the International
Securities.
32
<PAGE> 33
"Shares" shall mean the U.S. Shares and the International Shares.
"Singapore Management and 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.
"Singapore Underwriters" shall mean the several underwriters
named in the Singapore Underwriting Agreement.
"Subsidiary" shall mean each of Chartered Semiconductor
Manufacturing Inc. and Chartered Silicon Partners Pte Ltd.
"Underwriter" and "Underwriters" shall mean the U.S. Underwriters
and the International Underwriters.
"Underwritten Securities" shall mean the U.S. Underwritten
Securities and the International Underwritten Securities.
"Underwritten Shares" shall mean the U.S. Underwritten Shares,
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 referred
to in paragraph 1(a) above and any preliminary prospectus with respect
to the offering of the U.S. Securities, as the case may be, included in
the Registration Statement at the Effective Date that omits Rule 430A
Information.
"U.S. Prospectus" shall mean the prospectus relating to the U.S.
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"U.S. Representatives" shall mean the addressees of the U.S.
Underwriting Agreement.
33
<PAGE> 34
"U.S. Securities" shall mean the U.S. Underwritten Securities and
the U.S. Option Securities.
"U.S. Underwriters" shall mean the several Underwriters named in
Schedule I to the U.S. Underwriting Agreement.
"U.S. Underwriting Agreement" shall mean the U.S. Underwriting
Agreement dated the date hereof relating to the sale of the U.S.
Securities by the Company to the U.S. Underwriters.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several International Underwriters.
34
<PAGE> 35
Very truly yours,
Chartered Semiconductor Manufacturing
Ltd
By: /s/ Chia Song Hwee
----------------------------------
Name: Chia Song Hwee
Title: Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers International Limited
By: /s/ Firman Leung
-----------------------------------
Name: Firman Leung
Title: Director
Credit Suisse First Boston (Singapore) Limited
By: /s/ Pamela Guardo
-----------------------------------
Name: Pamela Guardo
Title: Vice President
For themselves and the other several International
Representatives and International Underwriters
named in Schedule I
to the foregoing Agreement.
35
<PAGE> 36
ANNEX A
List of Subsidiaries
Chartered Semiconductor Manufacturing, Inc.
Chartered Silicon Partners Pte Ltd
36
<PAGE> 37
SCHEDULE I
<TABLE>
<CAPTION>
Number of International
International Underwriter Underwritten Shares
- ------------------------- -----------------------
<S> <C>
Salomon Brothers International Limited ........... 25,312,500
Credit Suisse First Boston (Singapore) Limited ... 21,562,500
Hambrecht & Quist LLC ............................ 9,000,000
Societe Generale ................................. 9,000,000
SoundView Technology Group, Inc. ................. 7,125,000
Overseas Union Bank Limited ...................... 1,500,000
Vickers Ballas & Company Pte Ltd. ................ 1,500,000
Total ............................................ 75,000,000
</TABLE>
37
<PAGE> 38
SCHEDULE II
List of signatories to letter attached as Exhibit A
Actel Corporation
Alliance Semiconductor Corporation
Brooktree Corporation
Conexant Systems Inc
Standard Microsystems Corporation
Analog Devices BV
EDB Investments Pte Ltd
LSI Logic Hong Kong Limited
Singapore Technologies Ptd Ltd
Singapore Technologies Semiconductors Pte Ltd
Toshiba Corporation
Andre Borrel
Aubrey Tobey
Charles Thompson
James H. Van Tassel
Koh Beng Seng
Robert La Blanc
Sum Soon Lim
Gordon Llewellyn Lindert
John Docherty
John Martin
Kevin Jerome Meyer
Lau Chi Kwan
Lim Kim Moh
Micheal John Rekuc
Neoh Soon Ee
Pan Yang
Robert Baxter
Subhash Gupta
Tan Seng Chai
Thomas H. R. Gurnee
Tom Endicott
Walter Reinhardt Prochaska
Ana Molnar Hunter
Ang Tang Yong
Barry Waite
Brian Charles Klene
Chia Song Hwee
Chan Lap Hung Sunny
Chu Shao-Fu Sanford
Chua Thow Phock
Cuthbertson Alan
Daniel L. Domingo
38
<PAGE> 1
EXHIBIT 1.3
DATED 29TH OCTOBER, 1999
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
AS COMPANY
OVERSEAS UNION BANK LIMITED
AS LEAD MANAGER AND UNDERWRITER
- AND -
CITICORP INVESTMENT BANK (SINGAPORE) LIMITED
AS CO-LEAD MANAGER AND UNDERWRITER
-------------------------------------------------
MANAGEMENT AND UNDERWRITING AGREEMENT
RELATING TO THE
SINGAPORE RETAIL OFFERING
-------------------------------------------------
ALLEN & GLEDHILL,
36, ROBINSON ROAD, #18-01,
CITY HOUSE,
SINGAPORE 068877.
<PAGE> 2
CONTENTS
<TABLE>
<CAPTION>
CLAUSE HEADING PAGE
- ------ ------- ----
<S> <C> <C>
1. DEFINITIONS 2
2. SINGAPORE RETAIL OFFERING 5
3. SUBSCRIPTION AND OPTION 5
4. SINGAPORE PROSPECTUS 5
5. FEE AND COMMISSION 6
6. DELIVERY AND PAYMENT 6
7. WARRANTIES AND UNDERTAKINGS 7
8. SUB-UNDERWRITING 16
9. BROKERAGE 16
10. CONDITIONS 16
11. RESCISSION AND TERMINATION 17
12. ANNOUNCEMENTS 18
13. ADVERTISEMENT 18
14. CONSENT TO DISCLOSURE 18
15. TIME OF ESSENCE 18
16. COUNTERPARTS 18
17. NOTICES 18
18. AGREEMENT AMONG MANAGERS 19
19. SUCCESSORS 20
20. GOVERNING LAW 21
SCHEDULE 1 - UNDERWRITING COMMITMENTS 22
SCHEDULE 2 - FORM OF CERTIFICATE 23
SCHEDULE 3 - AUTHORISED SIGNATORIES 24
</TABLE>
<PAGE> 3
T H I S A G R E E M E N T is made on 29th October, 1999
B E T W E E N:-
(1) CHARTERED SEMICONDUCTOR MANUFACTURING LTD (the "Company"), a company
incorporated in Singapore with its registered office at 60, Woodlands
Industrial Park D, Street 2, Singapore 738406;
(2) OVERSEAS UNION BANK LIMITED ("OUB" or the "Lead Manager"), a company
incorporated in Singapore with its registered office at 1, Raffles Place,
OUB Centre, Singapore 048616; and
(3) CITICORP INVESTMENT BANK (SINGAPORE) LIMITED, a company incorporated in
Singapore with its registered office at 5, Shenton Way, #37-03/04, UIC
Building, Singapore 068808 ("Citicorp" or the "Co-Lead Manager" and
together with the Lead Manager, the "Managers").
W H E R E A S:-
(A) The Company is a company limited by shares incorporated in Singapore on
16th November, 1987 and has at the date of this Agreement an authorised share
capital of S$800,000,000.540 consisting of 3,076,923,079 ordinary shares of
S$0.26 each, of which 988,847,853 ordinary shares of S$0.26 each have been
issued and are fully paid.
(B) The Company proposes to issue the New Shares (as defined below) and to
offer the New Shares by way of a Global Offering (as defined below) comprising:-
(i) 150,000,000 New Shares directly or in the form of ADSs (as defined
below) pursuant to the U.S. Offering (as defined below);
(ii) 75,000,000 New Shares directly or in the form of ADSs pursuant to
the International Offering (as defined below); and
(iii) 25,000,000 New Shares pursuant to the Singapore Retail Offering
(as defined below),
at the Offering Price (as defined below).
(C) Pursuant to the U.S. Underwriting Agreement (as defined below), the Company
has agreed to issue an aggregate of 150,000,000 New Shares, directly or in the
form of ADSs (the "U.S. Underwritten Shares"), and to grant to the U.S.
Underwriters (as defined below) an option to purchase from the Company up to
22,500,000 additional new Shares directly or in the form of ADSs to cover
over-allotments (the "U.S. Option Shares" and, together with the U.S.
Underwritten Shares, the "U.S. Securities").
(D) Pursuant to the International Underwriting Agreement (as defined below),
the Company has agreed to issue an aggregate of 75,000,000 New Shares, directly
or in the form of ADSs (the "International Underwritten Shares"), and to grant
to the International Underwriters (as defined below) an option to purchase from
the Company up to 11,250,000 additional new Shares directly or in the form of
ADSs to cover over-allotments (the "International Option Shares" and, together
with the International Underwritten Shares, the "International Securities").
(E) Pursuant to the Agreement Among U.S. Underwriters, International
Underwriters and Singapore Underwriters (as defined below), the International
Underwriters and the Managers may purchase from the U.S Underwriters a portion
of the U.S. Securities, the U.S
<PAGE> 4
Underwriters and the Managers may purchase from the International Underwriters a
portion of the International Securities and the U.S Underwriters and the
International Underwriters may purchase from the Managers a portion of the
Singapore Securities (as defined below).
(F) As part of the Global Offering, the U.S. Underwriters, the International
Underwriters and the Managers have agreed to reserve up to five per cent. of the
New Shares (including New Shares represented by ADSs) out of the Global Offering
(the "Directed Shares") for priority allocation to the Company's employees and
business associates, to the directors, officers and employees of the Company's
affiliates and to certain charitable organisations in Singapore (the
"Participants") at the Offering Price (the "Directed Share Program"). Any
Directed Shares not orally confirmed for purchase by any Participant by the end
of the business day on which the Underwriting Agreements (as defined below) are
executed will be offered to the public by the U.S. Underwriters, the
International Underwriters and the Managers as set out in the Agreement Among
U.S Underwriters, International Underwriters and Singapore Underwriters.
(G) The Company has obtained the approval in-principle from the Stock Exchange
of Singapore Limited (the "Stock Exchange") for the admission of all the issued
ordinary shares of S$0.26 each in the capital of the Company and all the New
Shares to the Official List of the Stock Exchange.
(H) The Company has requested OUB to lead manage and Citicorp to co-lead
manage, and OUB and Citicorp have agreed to lead manage and co-lead manage,
respectively, the Singapore Retail Offering (as defined below) on its behalf and
the Company has requested the Managers, and the Managers have agreed, to
subscribe for, or procure subscription for, the Invitation Shares (as defined
below), upon the terms and subject to the conditions of this Agreement.
I T I S A G R E E D as follows:-
1. DEFINITIONS
(A) In this Agreement:-
(i) except to the extent that the context requires otherwise:-
"ADSs" means American Depositary Shares, evidenced by American
depositary receipts, with each ADS representing 10 Shares;
"Agreement Among U.S. Underwriters, International Underwriters and
Singapore Underwriters" means the agreement dated 28th October,
1999 (New York time) entered into by the U.S. Underwriters, the
International Underwriters and the Managers, relating to the
Global Offering;
"Closing Date" means 4th November, 1999 (or such later date as the
Company and OUB may agree);
"Depository" has the meaning ascribed to it in Section 130A of the
Companies Act, Chapter 50 of Singapore;
"Directors" means the Directors of the Company named in the
Singapore Prospectus;
<PAGE> 5
"Global Offering" means the International Offering, the U.S.
Offering and the Singapore Retail Offering;
"Group" means the Company and its subsidiaries;
"International Offering" means the offering of New Shares directly
or in the form of ADSs to investors outside the U.S. and Canada;
"International Underwriters" means the International Underwriters
named in the International Underwriting Agreement;
"International Underwriting Agreement" means the underwriting
agreement dated 28th October, 1999 (New York time) entered into
between the Company and the International Underwriters, relating
to the International Offering;
"Invitation Shares" means the Offer Shares and the Singapore
Directed Shares;
"market day" means a day on which the Stock Exchange is open for
securities trading;
"NASDAQ" means Nasdaq National Market;
"New Shares" means 250,000,000 new ordinary shares of S$0.26 each
in the capital of the Company;
"Offer Shares" means 23,750,000 of the New Shares offered by way
of a public offering in Singapore;
"Offering Price" means U.S.$20 for each ADS and S$3.344 for each
New Share;
"Option Shares" means 3,750,000 new ordinary shares of S$0.26 each
in the capital of the Company;
"Prospectuses" means the International Prospectus, the U.S.
Prospectus (both as defined in the U.S. Underwriting Agreement and
the International Underwriting Agreement) and the Singapore
Prospectus;
"Shares" means ordinary shares of S$0.26 each in the capital of
the Company;
"Singapore Directed Shares" means 1,250,000 of the New Shares to
be allocated to Participants in Singapore;
"Singapore Dollar(s)" and the symbol "S$" mean the lawful currency
of Singapore;
"Singapore Prospectus" means the prospectus in the agreed form and
relating to the Singapore Retail Offering;
<PAGE> 6
"Singapore Retail Offering" means the offering of the Offer Shares
to investors in Singapore and Singapore Directed Shares to
Participants in Singapore on the terms and conditions of the
Singapore Prospectus;
"Singapore Securities" means the Invitation Shares and the Option
Shares;
"Specified Event" means an event occurring after the date of this
Agreement and prior to 10:00 p.m. on the Closing Date or (in the
event the option provided for in Clause 3(B) shall have been
exercised) the settlement date for the Option Shares)] which, if
it had occurred before the date of this Agreement, would have
rendered any of the warranties contained in Clause 7(A) untrue or
incorrect in any material respect;
"subsidiary" has the meaning ascribed to it in Section 5 of the
Companies Act, Chapter 50;
"Total Underwriting Commitments" means the aggregate of the
Underwriting Commitments;
"Underwriting Commitment" means, in relation to a Manager, the
number of Invitation Shares set out opposite its name in Schedule
1;
"U.S." means the United States of America;
"U.S. Dollars" or "US$" means the lawful currency of the U.S.;
"U.S. Offering" means the offering of New Shares directly or in
the form of ADSs to investors in the U.S. and Canada;
"U.S. Underwriters" means the U.S. Underwriters named in the U.S.
Underwriting Agreement;
"U.S. Underwriting Agreement" means the underwriting agreement
dated 28th October, 1999 (New York time) entered into between the
Company and the U.S. Underwriters, relating to the U.S. Offering;
and
"Underwriting Agreements" means the International Underwriting
Agreement, the U.S. Underwriting Agreement and this Agreement;
(ii) any reference to a document being "in the agreed form" means in
the form of the proof or draft thereof signed for identification
on behalf of the Company and OUB with such alterations (if any) as
may be agreed between the Company and OUB;
(iii) words importing the masculine gender shall, where applicable,
include the feminine and neuter genders and vice versa; and
(iv) a reference to a time of day shall be a reference to Singapore
time unless otherwise stated.
(B) References to "Recitals", "Clauses" and "Schedules" are to recitals of,
clauses of and schedules to this Agreement.
<PAGE> 7
(C) The headings are for convenience only and shall not affect the
interpretation of the provisions of this Agreement.
2. SINGAPORE RETAIL OFFERING
(A) Subject to the terms and conditions of this Agreement:-
(i) the Company appoints OUB, and OUB agrees, to lead manage the
Singapore Retail Offering; and
(ii) the Company appoints Citicorp, and Citicorp agrees, to co-lead
manage the Singapore Retail Offering.
(B) The Company authorises and directs OUB to do all such acts and things as it
may deem necessary or advisable for or in connection with the Singapore Retail
Offering and, in particular, but without prejudice to the foregoing and the
other provisions of this Agreement:-
(i) to assist the Company in the Singapore Retail Offering on the
terms and subject to the conditions of this Agreement; and
(ii) to make available copies of the Singapore Prospectus to such
persons as it may in its discretion deem fit.
3. SUBSCRIPTION AND OPTION
(A) Subject to the terms and conditions of this Agreement and in reliance upon
the representations, warranties and undertakings set out in Clause 7, the
Company agrees to issue, and each Manager agrees, severally and not jointly, to
subscribe or procure subscriptions for the number of Invitation Shares
representing its Underwriting Commitment at the Offering Price for each
Invitation Share.
(B) Subject to the terms and conditions of this Agreement and in reliance upon
the representations, warranties and undertakings set out in Clause 7, the
Company hereby grants an option to the Managers to, severally and not jointly
and each in the proportion borne by its Underwriting Commitment to the Total
Underwriting Commitments, subscribe or procure subscriptions for up to 3,750,000
Option Shares at the Offering Price, to cover over-allotments in the Singapore
Retail Offering. Such 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
Singapore Prospectus upon notice by OUB, on behalf of the Managers, to the
Company, setting out the number of Option Shares as to which the Managers are
exercising such option and the settlement date.
(C) The Company agrees with and undertakes to each of the Managers that the
Invitation Shares and the Option Shares will upon their issue rank in all
respects pari passu with the existing issued ordinary shares of S$0.26 each in
the capital of the Company.
4. SINGAPORE PROSPECTUS
Subject to the terms and conditions of this Agreement, not later than 29th
October, 1999 (or such other date as the Company and OUB may agree), the Company
undertakes to procure:-
<PAGE> 8
(i) a copy of the Singapore Prospectus (duly signed by or on behalf of
each of the Directors) to be lodged with the Registrar of
Companies and Businesses for registration together with any other
documents required by law to be annexed to the Singapore
Prospectus; and
(ii) all necessary copies of the Singapore Prospectus to be delivered
to the Stock Exchange.
5. FEE AND COMMISSION
(A) In consideration of the agreement by OUB to manage the Singapore Retail
Offering contained in Clause 2, the Company agrees to pay to OUB a management
fee in the amount and on the terms as stated in a letter dated 17th September,
1999 from the Managers to the Company.
(B) In consideration of the agreement by the Managers to subscribe or procure
subscriptions for the Invitation Shares contained in Clause 3(A) and the Option
Shares (subject to the option set out in Clause 3(B) having been duly exercised
in accordance with Clause 6), the Company agrees to pay to each Manager an
underwriting commission of one per cent. of the Offering Price for the total
number of Invitation Shares and the Option Shares (to the extent that the option
is exercised) which that Manager has agreed to subscribe or procure
subscriptions for pursuant to this Agreement. Such underwriting commission shall
be payable on the Closing Date or on the settlement date of the Option Shares,
as the case may be, and deducted from the aggregate Offering Price for the
Invitation Shares and the Option Shares, as the case may be, as provided in
Clause 6.
(C) The Company shall bear all expenses of or incidental to the Singapore
Retail Offering including, without limiting the generality of the foregoing, the
fees of the professional advisers of the Company, the cost of printing and
distributing the Singapore Prospectus, the cost of advertising the Singapore
Prospectus, the cost of printing this Agreement, registrar's charges,
accountancy fees, legal fees, the listing fees and other incidental fees payable
to the Stock Exchange for the listing application. The Company shall forthwith
upon request by the Managers (supported by documentary evidence thereof)
reimburse the amount of any such expenses which the Managers may have paid on
its behalf and shall reimburse the Managers for all out-of-pocket expenses
incurred by them in connection with this Agreement, as agreed and subject to the
aggregate maximum amount stated in a letter dated 17th September, 1999 from the
Managers to the Company.
(D) Any goods and services tax or other levies imposed by law (including but
not limited to the Goods and Services Tax Act, Chapter 117A of Singapore but
excluding income tax) or required to be paid in respect of any moneys payable to
or received or receivable by the Managers or any expenses incurred by the
Managers shall (except to the extent prohibited by law) be borne and paid by the
Company.
6. DELIVERY AND PAYMENT
(A) Delivery of and payment for the Invitation Shares and the Option Shares (if
the option provided for in Clause 3(B) shall have been exercised on or before
the fifth business day prior to the Closing Date) shall be made at 10:00 p.m. on
the Closing Date.
(B) The share certificates in respect of the Invitation Shares and the Option
Shares (if the option provided for in Clause 3(B) shall have been exercised on
or before the fifth business day prior to the Closing Date) shall be issued in
the name of, and delivered to, the
<PAGE> 9
Depository for the account of the Managers or such other persons as OUB, on
behalf of the Managers, may direct, against payment by the Managers, each in the
proportion borne by its Underwriting Commitment to the Total Underwriting
Commitments, of the aggregate net subscription moneys of the Invitation Shares
and, if applicable, the Option Shares (being the aggregate Offering Price of the
Invitation Shares and, if applicable, the Option Shares, less (i) (in the case
of OUB only) the management fee payable to OUB pursuant to Clause 5(A) and the
brokerage payable pursuant to Clause 9, and (ii) the underwriting commission
payable to the Managers pursuant to Clause 5(B)) to or to the order of the
Company in immediately available and freely transferable funds to such account
with such bank in Singapore as Salomon Brothers International Limited shall have
notified to OUB, on behalf of the Company, for such purpose.
(C) It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the U.S. Underwriting Agreement and
the International Underwriting Agreement and that the settlement date for any
Option Shares occurring after the Closing Date, shall occur simultaneously with
the settlement date under the U.S. Underwriting Agreement and the International
Underwriting Agreement for any U.S. Option Shares and International Option
Shares occurring after the Closing Date.
(D) If the option provided for in Clause 3(B) is exercised after the fifth
business day prior to the Closing Date, the Company will deliver (at the expense
of the Company) to the Managers on the date specified by the Managers (which
shall be within five business days after exercise of said option), share
certificates representing the Option Shares in respect of which such option
shall have been exercised and issued in the name of the Depository, to the
Depository for the account of the Managers or such other persons as OUB, on
behalf of the Managers, may direct, against payment by the Managers, each in the
proportion borne by its Underwriting Commitment to the Total Underwriting
Commitments, of the aggregate net subscription moneys of the relevant number of
Option Shares in respect of which such options shall have been exercised (being
the aggregate Offering Price of such Option Shares, less the underwriting
commission payable to the Managers pursuant to Clause 5(B) and the brokerage
payable pursuant to Clause 9) to or to the order of the Company in immediately
available and freely transferable funds to such account with such bank in
Singapore as Salomon Brothers International Limited shall have notified to OUB,
on behalf of the Company, for such purpose.
(E) If settlement for the Option Shares occurs after the Closing Date, the
Company will deliver to the Managers on the settlement date for the Option
Shares, and the obligation of the Managers to subscribe or procure subscriptions
for the Option Shares 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 Clause 10.
7. WARRANTIES AND UNDERTAKINGS
(A) The Company warrants to and undertakes with each of the Managers as
follows:-
(i) Each of the Group has been duly incorporated and is validly
existing as a corporation under the laws of the jurisdiction in
which it is incorporated with full corporate power to own or
lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectuses, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified or be
in good standing would not, individually or in the
<PAGE> 10
aggregate, have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Group, taken as a whole.
(ii) All the outstanding share capital of each subsidiary has been duly
and validly authorized and issued and is fully paid and
non-assessable and, except for such shares of Chartered Silicon
Partners Pte Ltd ("CSP") as are owned by Hewlett-Packard Europe
B.V., or EDB Investments Pte Ltd which shares do not exceed 49% of
the outstanding voting shares of CSP, all the outstanding shares
of capital stock of the subsidiaries are owned by the Company
directly free and clear of any perfected security interests, liens
or encumbrances.
(iii) The Company's authorised, issued and outstanding equity
capitalization is as set forth in the Prospectuses. The
outstanding Shares have been duly and validly authorized and
issued and are fully paid and non-assessable. The Singapore
Securities being sold under this Agreement by the Company have
been duly and validly authorized, and, when issued and delivered
to the Depositary or its nominee in accordance with the Deposit
Agreement, will be validly issued, fully paid and non-assessable.
The holders of outstanding shares of capital stock of the Company
are not entitled to any preemptive or other rights to subscribe
for the Singapore Securities except for such rights that have been
effectively waived. Except as disclosed in the Prospectuses, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding. The Singapore
Securities are freely transferable by the Company to or for the
account of the several Underwriters, their designees and the
initial purchasers thereof, and except as set forth in the
Prospectuses there are no restrictions on subsequent transfers of
the Singapore Securities under the laws of Singapore.
(iv) The capital stock of the Company conforms in all material respects
to the description thereof contained in the Prospectuses. The
capital restructuring was approved by the Company's shareholders
at an extraordinary general meeting on 14th October, 1999 (the
"EGM") and has become effective and has been completed as
described in the Prospectuses under the heading "Capitalization."
The Articles of Association described in the Prospectuses under
the heading "Description of Ordinary Shares" were adopted by the
Company's shareholders at the EGM and are in full force and
effect.
(v) This Agreement has been duly authorized, executed and delivered by
the Company.
(vi) There is no franchise, contract or other document of a character
required to be described in the Prospectuses, or to be filed as an
exhibit thereto, which is not described or filed as required; and
the description of each such contract, franchise or document in
the Prospectuses is a fair description thereof in all material
respects; and each such franchise, contract or other document to
which the Company is a party, assuming due authorization,
execution and delivery thereof by all parties thereto, is
<PAGE> 11
enforceable against the Company in accordance with its terms and
is in full force and effect, and to the Company's knowledge, is a
legal, valid and binding obligation of the other parties thereto.
The statements in the Prospectuses under the heading "Taxation",
fairly summarize the matters therein described.
(vii) No stamp or other issuance or transfer taxes or duties and no
income, withholding or other taxes are payable by or on behalf of
the Managers to the Singapore government or taxing authority in
connection with (a) the execution and delivery of the Underwriting
Agreements, (b) the issuance of the Shares in the manner
contemplated by the Underwriting Agreements, (c) the sale and
delivery of the Shares to the Underwriters, or (d) except as
disclosed in the Prospectuses under the heading
"Taxation--Singapore Taxation", the resale and delivery of such
Shares by the U.S. Underwriters or the International Underwriters
in the manner contemplated in the Prospectuses.
(viii) No consent, approval (including exchange control approval),
authorization, filing with or order of any court or governmental
or regulatory agency or body is required under Singapore law in
connection with the transactions contemplated in this Agreement,
except such as have been obtained under the Companies Act, Chapter
50 of Singapore, and such as may be required under the blue sky or
similar laws of any jurisdiction in connection with the purchase
and distribution of the Singapore Securities by the Managers in
the manner contemplated in the Underwriting Agreements and the
Prospectuses except as may be required pursuant to the National
Association of Securities Dealers, Inc. rules, The Nasdaq Stock
Market, Inc. rules or the letter from the SES dated September 15,
1999 granting approval in principle for the listing and quotation
of the entire issued and share capital of the Company on the Main
Board of the SES, as have been obtained.
(ix) Neither the issue and sale of the Singapore Securities nor the
consummation of any other of the transactions contemplated in this
Agreement, the U.S. Underwriting Agreement, the International
Underwriting Agreement or the Deposit Agreement, nor the
fulfillment of the terms hereof or thereof will conflict with,
result in a breach or violation of, or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
or any of the subsidiaries pursuant to, (a) the memorandum and
articles of association of the Company or the constituent
documents of any of the subsidiaries, (b) the terms of any
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement, permit, license, franchise or other
agreement, obligation, condition, covenant or instrument to which
the Company or any of the subsidiaries is a party or bound or to
which its or their property is subject, or (c) any statute, law,
rule, regulation, judgment, order or decree applicable to the
Company or any of the subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of the
subsidiaries or any of its or their properties, except, with
respect to clause (b) or (c) above, such as would not individually
or in the aggregate, have a material adverse effect on (A) the
performance of this Agreement or the consummation of any of the
transactions
<PAGE> 12
contemplated herein or (B) the condition (financial or otherwise),
prospects, earnings, business or properties of the Group, taken as
a whole.
(x) The consolidated historical financial statements and schedules of
the Group (including the related notes) included in the Singapore
Prospectus present fairly in all material respects the financial
condition, results of operations, changes in financial position
and cash flows as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of
the Act and have been prepared in conformity with generally
accepted accounting principles in Singapore applied on a
consistent basis throughout the periods indicated (except as
otherwise noted therein). The summary and selected financial data
included in the Singapore Prospectus fairly present in all
material respects, on the basis stated in the Singapore
Prospectus, the information included therein. The pro forma
financial statements included in the Singapore Prospectus include
assumptions that provide a reasonable basis for presenting the
significant effects directly attributable to the transactions and
the events described therein, the related pro forma adjustments
give appropriate effect to those assumptions, and the pro forma
adjustments reflect proper application of those adjustments to the
historical financial statement amounts in the pro forma financial
statements included in the Singapore Prospectus.
(xi) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of the subsidiaries or its or their property is
pending or, to the knowledge of the Company, threatened that (i)
could reasonably be expected to have a material adverse effect on
the performance of this Agreement or the consummation of any of
the transactions contemplated hereby or (ii) could reasonably be
expected to have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Group, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as
set forth or contemplated in the Prospectuses (exclusive of any
supplement thereto).
(xii) Each of the Group owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted.
Any real property and buildings held under lease by the Company or
any of the subsidiaries are held under valid, subsisting and
enforceable leases, with such exceptions as are not material and
do not interfere with the use made or proposed to be made of such
property and buildings by the Company or any of the subsidiaries,
in each case except as described in or contemplated in the
Prospectuses.
(xiii) Neither the Company nor any of the subsidiaries is in violation or
default of (a) any provision of its memorandum and articles of
association or other constituent documents, (b) 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 (c) any statute, law,
rule, regulation, judgment, order or decree applicable to the
Company or any of the subsidiaries of any court, regulatory body,
<PAGE> 13
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of the
subsidiaries or any of its or their properties, except, with
respect to clause (b) or (c) above, such as would not individually
or in the aggregate, have a material adverse effect on (A) the
performance of this Agreement or the consummation of any of the
transactions contemplated herein or (B) the condition (financial
or otherwise), prospects, earnings, business or properties of the
Group, taken as a whole.
(xiv) The Company has not taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, under the laws
in Singapore, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of
the Singapore Securities, provided, however, that this provision
shall not apply to any trading or stabilization activities
conducted by the Managers.
(xv) Each of the Group possesses all licenses, permits, certificates
and other authorizations issued by the Singapore regulatory
authorities necessary to conduct its business as currently
conducted, except in any case in which the failure so to possess
any such license, permit, certificate or other authorization would
not, individually or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Group, taken as a whole.
Neither the Company nor any of the subsidiaries has received any
notice of proceedings relating to the revocation or modification
of any such license, permit, certificate or authorization which,
singly or in the aggregate, if the subject of an unfavorable
decision ruling or findings, would have a material adverse effect
on the condition (financial or otherwise), prospects, earnings,
business or properties of the Group, taken as a whole, whether or
not arising from transactions in the ordinary course of business,
except as set forth in the Singapore Prospectus (exclusive of any
supplement thereto).
(xvi) No labor dispute with the employees of the Company or any of the
subsidiaries exists or to the Company's best knowledge,
threatened, and the Company is not aware of any existing labor
disturbance by the employees of the Company or any of its
subsidiaries, that could have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Group, 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).
(xvii) Each of the Group is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts
as are prudent and customary in the businesses in which it is
engaged. All policies of insurance insuring the Company or any of
the subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect;
each of the Group is in compliance with the terms of such policies
and instruments in all material respects; and there are no claims
by the Company or any of the subsidiaries under any such policy or
instrument as to which any insurance company is denying
<PAGE> 14
liability or defending under a reservation of rights clause.
Neither the Company nor any of the subsidiaries has been refused
any insurance coverage sought or applied for. The Company has no
reason to believe that either the Company or any of the
subsidiaries will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a material adverse effect
on the condition (financial or otherwise), prospects, earnings,
business or properties of the Group, 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).
(xviii) None of the Company's subsidiaries is currently prohibited,
directly or indirectly, from paying any dividends to the Company,
from making any other distribution on its capital stock, from
repaying to the Company any loans or advances to it from the
Company or from transferring any of its property or assets to the
Company or the other subsidiary, except for certain restrictions
as set forth in the Joint Venture Agreement dated July 4, 1997 by
and among the Company, Hewlett-Packard Europe B.V. and EDB
Investments Pte Ltd (as amended) or as described in or
contemplated in the Prospectuses.
(xix) The Group owns, possesses, licenses or has other rights to use, on
reasonable terms, all patents, patent applications, trademarks,
service marks, trade and service mark registrations, trade names,
licenses, copyrights, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the
"Intellectual Property") necessary for the conduct of the
Company's business as now conducted, and as described in the
Prospectuses, except where the failure to so own, possess, license
or have other rights to use would not have a material adverse
effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Group, taken as a whole,
whether or not arising from the ordinary course of business.
Except as set forth in the Prospectuses under the captions "Risk
Factors" or "Business Intellectual Property", to the Company's
best knowledge, (a) there are no rights of third parties to any
such Intellectual Property; (b) there is no material unauthorized
use, infringement or misappropriation by third parties of any such
Intellectual Property; (c) there is no pending or threatened
action, suit, proceeding or claim by others challenging the
Company's rights in or to any such Intellectual Property, and the
Company is unaware of any facts which would form a reasonable
basis for any such claim; (d) there is no pending or threatened
action, suit, proceeding or claim by others challenging the
validity or scope of any such Intellectual Property, and the
Company is unaware of any facts which would form a reasonable
basis for any such claim; (e) there is no pending or threatened
action, suit, proceeding or claim by others that the Company
infringes or otherwise violates any patent, trademark, copyright,
trade secret or other proprietary right of others in any
Intellectual Property, and the Company is unaware of any other
fact which would form a reasonable basis for any such claim; and
(f) there is no prior art of which the Company is aware that may
render any Singapore patent held by the Company invalid or any
Singapore patent
<PAGE> 15
application held by the Company unpatentable which has not been
disclosed to the Singapore Trademark and Patent Office, in the
case of any of (a) through (f) above, which would have a material
adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Group, taken as
a whole, whether or not arising from the ordinary course of
business.
(xx) Each of the Group has implemented a comprehensive, detailed
program to analyze and address the risk that the computer hardware
and software used by them may be unable to operate correctly with
respect to calendar dates falling on or after January 1, 2000 in
the same manner, and with the same functionality, as with respect
to calendar dates falling on or before December 31, 1999 (the
"Year 2000 Problem"), and the Company and each of the subsidiaries
reasonably believe that such program will address the Year 2000
Problem with respect to the material operations of the Company on
a timely basis and will not have a material adverse effect upon
the condition (financial or otherwise), prospects, earnings,
business or properties of the Group, taken as a whole.
(xxi) The Company has filed all Singapore tax returns that are required
to be filed or has requested extensions thereof, except in any
case in which the failure so to file would not have a material
adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Group, taken as
a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectuses (exclusive of any supplement thereto) and has paid
all taxes required to be paid by it and any other assessment, fine
or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine
or penalty that is currently being contested in good faith or as
would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Group, 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).
(xxii) Each of the Group maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (a)
transactions are executed in accordance with management's general
or specific authorizations; (b) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles in
Singapore and to maintain asset accountability; (c) access to
assets is permitted only in accordance with management's general
or specific authorization; and (d) the recorded accountability for
assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(xxiii) The Company represents and warrants that (i) the Prospectuses
comply, and any further amendments or supplements thereto will
comply, with any applicable laws or regulations of foreign
jurisdictions in which the Prospectuses, as amended or
supplemented, if applicable, are distributed in connection with
the Directed Share Program, and that (ii) no
<PAGE> 16
authorization, approval, consent, license, order, registration or
qualification of or with any government, governmental
instrumentality or court, other than such as have been obtained,
is necessary under the securities laws and regulations of
Singapore in respect of the Directed Shares.
(xxiv) The Group (i) is in compliance with any and all Singapore laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws") applicable to
conduct their respective businesses, (ii) has received and is in
compliance with all permits, licenses or other approvals required
of them under applicable Environmental Laws to conduct their
respective businesses and (iii) have not received notice of any
actual or potential liability for the investigation or remediation
of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability would
not, individually or in the aggregate, have a material adverse
change in the condition (financial or otherwise), prospects,
earnings, business or properties of the Group, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in the Prospectuses (exclusive of
any supplement thereto).
(B) The obligations of OUB under Clause 2 and the obligations of the Managers
under Clause 6 are made on the basis of the warranties contained in sub-Clause
(A) above and with the intention that the same shall remain true and accurate in
all respects up to and including the Closing Date and (in the event the option
provided for in Clause 3(B) is exercised) the settlement date for the Option
Shares, and the Company undertakes to and agrees with each of the Managers:-
(i) to use all reasonable endeavours not to permit any Specified Event
to occur before the Closing Date and (in the event the option
provided for in Clause 3(B) is exercised) the settlement date for
the Option Shares; and
(ii) to forthwith give notice to OUB of any Specified Event which has
occurred or come to its knowledge prior to the Closing Date and
(in the event the option provided for in Clause 3(B) is exercised)
the settlement date for the Option Shares and to forthwith take
such steps as the Managers may reasonably require to remedy and/or
publicise the same without prejudice to the Managers' rights and
remedies under or pursuant to this Agreement.
(C) The Company undertakes to and agrees with each of the Managers to fully and
effectually indemnify each of the Managers from and against all losses, claims,
costs (including legal costs on a full indemnity basis), charges, liabilities,
actions and demands which any of the Managers may incur or suffer or which may
be made against any of the Managers in connection with or arising out of the
issue of the Singapore Prospectus or the Singapore Retail Offering or any breach
of the warranties contained in sub-Clause (A) above or any failure or delay by
the Company in performing the Company's undertakings in sub-Clause (E) below,
save and except for any loss or damage arising out of any wilful default, fraud
or negligence on the part of the relevant Manager.
<PAGE> 17
(D) The warranties in sub-Clause (A) above shall be deemed to be repeated on
and as of the Closing Date and (in the event the option provided for in Clause
3(B) is exercised) the settlement date for the Option Shares and the obligations
of the Company in respect thereof shall continue in full force and effect
notwithstanding completion of the subscription of the Invitation Shares and (in
the event the option provided for in Clause 3(B) is exercised) the Option Shares
under this Agreement or any investigation by any of the Managers.
(E) The Company hereby undertakes to the Managers:-
(i) not to vary or issue any supplement to the Singapore Prospectus
without the prior consent in writing of the Managers, such consent
not to be unreasonably withheld, and not to disclose, announce or
otherwise disseminate any information concerning the Company or
the Group or the New Shares pending the issue of the Singapore
Prospectus or any information which is not contained in the
Singapore Prospectus or which may in the opinion of the Managers
be inconsistent with the information contained therein, without
the consent of the Managers, such consent not to be unreasonably
withheld;
(ii) to supply the Managers with any information or document which they
may reasonably require affecting the accounts or affairs of the
Company and to do all such other things and sign or execute such
documents as may reasonably be required by the Managers in order
to complete the Singapore Retail Offering;
(iii) to use its best endeavours to procure the share registrar to do
all such acts and things as may be required by the Managers in
connection with the Singapore Retail Offering and the transactions
associated with the New Shares including the expeditious
processing of the applications for the New Shares;
(iv) to use its best endeavours to obtain and maintain the listing and
quotation of the New Shares on the Stock Exchange for a year from
the date of admission to the Official List of the Stock Exchange;
(v) not to take any action to permit a public offering of the New
Shares or distribute the Singapore Prospectus or any document or
form relating to the New Shares or other material relating to the
Singapore Retail Offering in any country or jurisdiction except in
Singapore or any other country or jurisdiction where such offering
or distribution is permitted;
(vi) except for the Option Shares and any Shares to be issued by the
Company pursuant to the exercise of options granted pursuant to
the Chartered Semiconductor Manufacturing Ltd Share Option Plan
1999, not to issue at any time on or before the expiry of 60 days
after the Closing Date, any marketable securities (in the form of,
or represented or evidenced by, bonds, notes, debentures, loan
stock or other securities) or shares or options therefor without
the prior written consent of the Managers, such consent not to be
unreasonably withheld;
(vii) not to, and will procure that its subsidiaries will not, at any
time on or before the Closing Date and (in the event the option
provided for in Clause 3(B) is exercised) the settlement date for
the Option Shares
<PAGE> 18
without the prior written consent of the Managers, such consent
not to be unreasonably withheld, dispose of in any manner
(otherwise than in the ordinary and normal course of their
respective businesses) any of their respective properties, fixed
assets and/or subsidiaries or any other asset which is (in the
reasonable opinion of the Managers) of a material nature; and
(viii) not to take any action or do any act or thing which may be
materially prejudicial to the Singapore Retail Offering.
8. SUB-UNDERWRITING
OUB shall be at liberty to sub-underwrite its underwriting obligations
under this Agreement upon such terms and conditions as set out in a letter dated
17th September, 1999 from the Managers to the Company. Citicorp shall be at
liberty to sub-underwrite its underwriting obligations under this Agreement
provided that Citicorp shall not sub-underwrite its underwriting obligations to
any financial institution other than Citibank, N.A. or any of its affiliates
without seeking clearance from OUB.
9. BROKERAGE
The Company will pay brokerage at the rate of one per cent of the Offering
Price of the Invitation Shares to OUB for full allocation amongst members of the
Singapore Retail Syndicate (as defined in the Singapore Prospectus) based on the
final allocation of Invitation Shares to investors through the relevant member
of the Singapore Retail Syndicate.
10. CONDITIONS
(A) This Agreement and the obligations of the Managers under this Agreement are
conditional upon:-
(i) the Singapore Prospectus having been registered with the Registrar
of Companies and Businesses by 29th October, 1999;
(ii) such approvals as may be required for the transactions described
in this Agreement and in the Singapore Prospectus being obtained,
and not withdrawn or amended, before 29th October, 1999 (or such
other date as the Company and the Managers may agree);
(iii) the delivery to OUB on the Closing Date and (in the event the
option provided for in Clause 3(B) is exercised) the settlement
date for the Option Shares of a certificate in the form set out in
Schedule 2 signed by a Director, a copy of which shall thereafter
be delivered to Citicorp for its record;
(iv) the U.S. Underwriting Agreement and the International Underwriting
Agreement not having been terminated or rescinded prior to the
Closing Date; and
(v) the delivery of and payment for the New Shares (other than the
Invitation Shares) pursuant to the U.S. Underwriting Agreement and
the International Underwriting Agreement taking place
substantially concurrently (giving effect to the time difference
between New York and
<PAGE> 19
Singapore) with the delivery of and payment for the
Invitation Shares pursuant to this Agreement on the
Closing Date.
(B) The Company shall use its best endeavours to procure the fulfilment of such
conditions and, in particular, shall furnish such information, supply such
documents, give such undertaking(s) and do all such acts and things as may be
required to enable the New Shares to be admitted to the Official List of the
Stock Exchange and the ADSs listed on NASDAQ as aforesaid.
(C) If such conditions are not fulfilled, this Agreement shall ipso facto cease
and determine and (save in respect of any breach of sub-Clause (B) above) no
party shall have any claim against the others for costs, damage, compensation or
otherwise except that the Company shall continue to be bound by its obligations
under Clauses 5 and 7, shall indemnify the Managers in accordance with Clause 7
and shall reimburse the Managers for all out-of-pocket expenses incurred by them
in connection with this Agreement as agreed and subject to the aggregate maximum
amount stated in a letter dated 17th September, 1999 from the Managers to the
Company, provided that the Managers shall be entitled to waive the condition in
sub-Clause (A)(iv) above.
11. RESCISSION AND TERMINATION
(A) Notwithstanding anything herein contained, the Managers may, by notice in
writing to the Company, rescind this Agreement if prior to 10:00 p.m. on the
Closing Date:-
(i) there shall come to the knowledge of the Managers any breach of
any of the warranties or undertakings contained in Clause 7(A) or
that any of the warranties by the Company in Clause 7(A) is untrue
or incorrect; or
(ii) any Specified Event comes to the knowledge of the Managers;
(iii) trading in the Company's Shares shall have been suspended by the
Stock Exchange or trading in securities generally on the Stock
Exchange shall have been suspended or limited or minimum prices
shall have been established on the Stock Exchange;
(iv) a banking moratorium shall have been declared by the Singapore
authorities; or
(v) there shall have occurred any outbreak or escalation of
hostilities involving Singapore, declaration by 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 Managers, impracticable or inadvisable to proceed
with the offering or delivery of the prospectus as contemplated by
the Singapore Prospectus (exclusive of any supplement thereto).
(B) If this Agreement is so rescinded, the Company shall reimburse the Managers
for all out-of-pocket expenses incurred by them in connection with this
Agreement as agreed and subject to the aggregate maximum amount stated in a
letter dated 17th September, 1999 from the Managers to the Company.
<PAGE> 20
(C) In addition, rescission or termination of this Agreement for any reason
shall be without prejudice to any rights of the Managers in respect of any such
breach as is therein referred to and shall not release the Company from its
obligations under Clauses 5 and 7, which shall continue in full force and
effect.
12. ANNOUNCEMENTS
No public announcement or communication concerning the Singapore Retail
Offering may be made or despatched by the Company without the prior consent in
writing of OUB (save as may be required by law or the rules of the Stock
Exchange or NASDAQ).
13. ADVERTISEMENT
The Company and OUB agree that tombstone advertisements of the Singapore
Retail Offering shall be made by OUB on behalf of and at the expense of the
Company on such dates and in such newspapers as OUB may, in consultation with
the Company, determine.
14. CONSENT TO DISCLOSURE
The Company consents to the disclosure by the Managers to the Stock
Exchange of any information relating to the Company and its affairs, operations
or business, where such disclosure is deemed to be necessary by the Managers for
the purposes of or in connection with the Singapore Retail Offering.
15. TIME OF ESSENCE
Any time, date or period mentioned in any provision of this Agreement may
be extended by mutual agreement between the parties but as regards any time,
date or period originally fixed or any time, date or period so extended as
aforesaid, time shall be of the essence.
16. COUNTERPARTS
This Agreement may be signed in any number of counterparts and by the
parties on separate counterparts, each of which when so executed shall be an
original, but all counterparts shall together constitute one and the same
document.
17. NOTICES
Any notice or other communication required or permitted to be given or made
hereunder shall be in writing and delivered personally or sent by post or by
facsimile addressed to the intended recipient thereof at its address or at its
facsimile number set out below (or to such other address or facsimile number it
may from time to time duly notify the other parties hereto):-
the Company : Chartered Semiconductor Manufacturing Ltd
60, Woodlands Industrial Park D,
Street 2, Singapore 738406.
Attention : Legal Department
Fax number : 362 2909
<PAGE> 21
OUB : Overseas Union Bank Limited
1, Raffles Place,
OUB Centre, Singapore 048616.
Attention : Soon Boon Siong
Fax number : 534 2232
Citicorp : Citicorp Investment Bank (Singapore) Limited
5, Shenton Way, #37-03/04,
UIC Building, Singapore 068808.
Attention : Messrs Soon Tit Koon,
Alex Tan and
Pang Siew Huey
Fax number : 224 7801
Any notice or communication shall be deemed to have been duly served (if given
or made personally or by facsimile) immediately or (if given or made by letter)
24 hours after posting. In the case of any notice or communication given by the
Company pursuant to Clause 7, such notice or communication shall be delivered
personally or sent by post and shall be given by the Authorised Signatories (as
defined in Schedule 3), whose names(s) and signature(s) are set out in Schedule
3, on behalf of the Company.
18. AGREEMENT AMONG MANAGERS
(A) Any notice, decision, approval, consent or waiver of the Managers under
this Agreement and the Agreement Among U.S. Underwriters, International
Underwriters and Singapore Underwriters shall be made or given by OUB for itself
and on behalf of Citicorp, with prior written consent of Citicorp, such consent
not to be unreasonably withheld and shall be binding on Citicorp.
(B) Citicorp hereby authorises OUB as its agent and on its behalf to do all
acts and things which it is required or entitled to do under this Agreement
including without prejudice to the generality of the foregoing:-
(i) arranging for payment for the Invitation Shares for which Citicorp
has subscribed or procured subscriptions for pursuant to Clause 5;
and
(ii) arranging for delivery to the Depository of the Invitation Shares
for which Citicorp has subscribed or procured subscriptions for
pursuant to Clause 5.
(C) Citicorp hereby agrees to OUB publishing its name, in the form in which it
appears in this Agreement, in any publications relating to the Singapore Retail
Offering, with prior consent of Citicorp, such consent not to be unreasonably
withheld.
(D) In acting under this Agreement, the Managers shall be entitled to rely on
any communication or document believed by them to be genuine and correct and to
have been signed or sent by the proper person and shall be entitled to rely as
to legal or other professional matters on opinions or statements of any legal or
other professional advisers appointed by them.
<PAGE> 22
(E) Nothing contained in this Agreement shall constitute the Managers an
association or partners with each other or render any of the Managers liable for
the obligations of the other Manager. Neither of the Managers shall be bound in
any way by the acts of the other Manager and none of the Managers shall have any
right to contribution or account against the other Manager except as expressly
or by necessary implication provided in this Agreement. Except as otherwise
expressly provided in this Agreement, each Manager shall bear all losses and
expenses incurred by it and be entitled to retain all profits earned by it in
connection with this Agreement.
(F) Each Manager acknowledges that it has not relied on any statement, opinion,
forecast or other representation made by the other Manager to induce it to enter
into this Agreement or the transactions contemplated by this Agreement and that
it has made and will continue to make, without reliance on the other Manager and
based on such documents as it considers appropriate, its own appraisal of the
creditworthiness of the Company and its own independent investigation of the
financial condition and affairs of the Company and of its own tax position in
connection with the execution of this Agreement or the transactions contemplated
by this Agreement, and the sale or purchase and resale (as the case may be) of
the Invitation Shares.
(G) Each Manager shall not have any responsibility to the other Manager on
account of the condition (financial or otherwise) of the Company or for the
completeness or accuracy of any statements, representations or warranties in, or
the validity, enforceability or sufficiency of, this Agreement or any other
document executed pursuant hereto or as hereby contemplated.
(H) Each Manager shall not be liable to the other Manager for any loss or
damage howsoever arising from any action taken or omitted under or in connection
with this Agreement or the transactions hereby contemplated. Notwithstanding
anything contained in this Agreement, each Manager shall have no responsibility
or liability to the other Manager on account of any loss the other Manager may
suffer as a result of its execution or performance of this Agreement or for the
execution, effectiveness, adequacy, genuineness, validity, enforceability or
admissibility in evidence of this Agreement or the transactions hereby
contemplated or for acting (or for refraining from acting) in accordance with
the instructions of that Manager.
(I) Each Manager may, without any liability to account to the other Manager,
accept deposits from, lend money to and generally engage in any kind of banking
or trust or other business with the Company or any of its subsidiaries or
associated companies.
(J) Each Manager shall contribute (in the proportion borne by its Underwriting
Commitment to the Total Underwriting Commitments) towards the reimbursement for
any costs and expenses incurred by the Managers in contemplation of, or
otherwise in connection with, the enforcement or preservation of any rights or
the performance of any term under this Agreement (including, in each case, the
fees and expenses of legal or other professional advisers on a full indemnity
basis) which are not recovered, or which the Managers agree not to claim, from
the Company under this Agreement. The liability of each Manager for such
contribution under this sub-Clause shall remain notwithstanding that this
Agreement is terminated pursuant to the terms of this Agreement.
19. SUCCESSORS
This Agreement shall be binding upon and shall enure to the benefit of the
respective successors in title of the parties thereto.
20. GOVERNING LAW
This Agreement shall be governed by, and construed in all respects in
accordance with, the laws of Singapore.
<PAGE> 23
SCHEDULE 1
UNDERWRITING COMMITMENTS
<TABLE>
<CAPTION>
Number of
Name of Manager Invitation Shares
--------------- -----------------
<S> <C> <C>
1. Overseas Union Bank Limited 17,875,000
2. Citicorp Investment Bank (Singapore) Limited 7,125,000
----------
Total Underwriting Commitments 25,000,000
==========
</TABLE>
<PAGE> 24
SCHEDULE 2
FORM OF CERTIFICATE
To: Overseas Union Bank Limited,
1, Raffles Place,
OUB Centre,
Singapore 048616. [ ](1), 1999
Dear Sirs,
I, [ ], a Director of Chartered Semiconductor
Manufacturing Ltd (the "Company"), refer to the Management and Underwriting
Agreement (the "Agreement") dated 29th October, 1999 made between (1) the
Company, as Company, (2) Overseas Union Bank Limited, as Lead Manager and
Underwriter for the Singapore Retail Offering, and (3) Citicorp Investment Bank
(Singapore) Limited, as Co-Lead Manager and Underwriter for the Singapore Retail
Offering, and hereby certify, on behalf of the Company, that:-
(i) I have been duly authorised by the Company to sign this
Certificate; and
(ii) to the best of my knowledge and belief, having made all reasonable
enquiries, since the date of the most recent financial statements
included in the Singapore Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the
condition (financial or otherwise), earnings, business or
properties of the Company or of the Group, 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 Singapore
Prospectus (exclusive of any supplement thereto) and the
representations and warranties of the Company in the Agreement are
true and correct in all material respects on and as of the
[Closing Date/the settlement date for the Option Shares](2) 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/settlement date for the Option
Shares](3).
Terms defined and references construed in the Agreement shall bear the same
meanings and construction in this Certificate.
Yours faithfully,
For and on behalf of
CHARTERED SEMICONDUCTOR
MANUFACTURING LTD
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
- ----------
(1) Closing Date or settlement date for the Option Shares, as appropriate.
(2) Delete as appropriate.
(3) Delete as appropriate.
<PAGE> 25
SCHEDULE 3
AUTHORISED SIGNATORIES
The following persons are designated by the Company as authorised signatories:-
Group A
<TABLE>
<CAPTION>
Name Position Held Signature
---- ------------- ---------
<S> <C> <C> <C>
1. BARRY WAITE President & CEO
2. CHIA SONG HWEE Chief Financial Officer
</TABLE>
Either of the signatories shall be authorised to sign all notices and
communications required or permitted to be given by or on behalf of the Company
pursuant to Clause 7 of this Agreement.
<PAGE> 26
IN WITNESS WHEREOF this Agreement has been entered into on the
date stated at the beginning.
The Company
SIGNED by /s/ CHIA SONG HWEE )
-------------------------------- )
for and on behalf of )
CHARTERED SEMICONDUCTOR )
MANUFACTURING LTD )
in the presence of:- /s/ BARRY WAITE )
The Lead Manager and Underwriter
SIGNED by /s/ RICHARD TAN )
-------------------------------- )
for and on behalf of )
OVERSEAS UNION BANK LIMITED )
in the presence of:- /s/ [Signature Illegible] )
The Co-Lead Manager and Underwriter
SIGNED by /s/ LUI CHONG CHEE )
-------------------------------- )
for and on behalf of )
CITICORP INVESTMENT BANK )
(SINGAPORE) LIMITED )
in the presence of:- /s/ [Signature Illegible] )
<PAGE> 1
EXHIBIT 4
- --------------------------------------------------------------------------------
DEPOSIT AGREEMENT
- --------------------------------------------------------------------------------
by and among
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
- --------------------------------------------------------------------------------
Dated as of November 4, 1999
<PAGE> 2
<TABLE>
<CAPTION>
Page
TABLE OF CONTENTS
<S> <C> <C> <C>
ARTICLE 1. DEFINITIONS
Section 1.1 "Affiliate"............................................................2
Section 1.2 "American Depositary Share(s)" and "ADS(s)"............................2
Section 1.3 "ADS Record Date"......................................................3
Section 1.4 "Applicant"............................................................3
Section 1.5 "Beneficial Owner......................................................3
Section 1.6 "Business Day".........................................................3
Section 1.7 "CDP"..................................................................3
Section 1.8 "Commission"...........................................................3
Section 1.9 "Company"..............................................................3
Section 1.10 "Custodian"............................................................3
Section 1.11 "Deliver" and "Delivery"...............................................4
Section 1.12 "Deposit Agreement"....................................................4
Section 1.13 "Depositary"...........................................................4
Section 1.14 "Deposited Securities".................................................4
Section 1.15 "Dollars" and "$"......................................................4
Section 1.16 "DTC"..................................................................5
Section 1.17 "DTC Participant"......................................................5
Section 1.18 "Exchange Act".........................................................5
Section 1.19 "Foreign Currency".....................................................5
Section 1.20 "Holder"...............................................................5
Section 1.21 "Pre-Release Transaction"..............................................5
Section 1.22 "Principal Office".....................................................5
Section 1.23 "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s)"............6
Section 1.24 "Registrar"............................................................6
Section 1.25 "Restricted Securities"................................................6
Section 1.26 "Securities Act".......................................................7
Section 1.27 "Share Registrar"......................................................7
Section 1.28 "Shares"...............................................................7
Section 1.29 "Singapore"............................................................8
Section 1.30 "Singapore Dollars" and "S$"...........................................8
Section 1.31 "United States"........................................................8
ARTICLE 2. APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF
SHARES; EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF
RECEIPTS
Section 2.1 Appointment of Depositary..............................................8
Section 2.2 Form and Transferability of Receipts...................................8
Section 2.3 Deposit with Custodian................................................12
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C> <C> <C>
Section 2.4 Registration of Shares................................................14
Section 2.5 Execution and Delivery of Receipts....................................15
Section 2.6 Transfer, Combination and Split-up of Receipts........................16
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities..............18
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc.......................20
Section 2.9 Lost Receipts, etc....................................................22
Section 2.10 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records................................................22
Section 2.11 Partial Entitlement ADSs..............................................22
Section 2.12 Restricted ADSs.......................................................24
ARTICLE 3. CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF
RECEIPTS
Section 3.1 Proofs, Certificates and Other Information............................25
Section 3.2 Liability for Taxes and Other Charges.................................27
Section 3.3 Representations and Warranties on Deposit of Shares...................27
Section 3.4 Compliance with Information Requests..................................28
Section 3.5 Ownership Restrictions................................................29
ARTICLE 4. THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions....................................................30
Section 4.2 Distribution in Shares................................................31
Section 4.3 Elective Distributions in Cash or Shares..............................32
Section 4.4 Distribution of Rights to Purchase Shares.............................33
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase
Shares................................................................36
Section 4.6 Distributions with Respect to Deposited Securities in Bearer
Form..................................................................38
Section 4.7 Redemption............................................................38
Section 4.8 Conversion of Foreign Currency........................................39
Section 4.9 Fixing of ADS Record Date.............................................41
Section 4.10 Voting of Deposited Securities........................................41
Section 4.11 Changes Affecting Deposited Securities................................43
Section 4.12 Available Information.................................................45
Section 4.13 Reports...............................................................45
Section 4.14 List of Holders.......................................................45
Section 4.15 Taxation..............................................................45
ARTICLE 5. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the Registrar.............47
Section 5.2 Exoneration...........................................................48
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
<S> <C> <C> <C>
Section 5.3 Standard of Care......................................................50
Section 5.4 Resignation and Removal of the Depositary; Appointment
of Successor Depositary...............................................51
Section 5.5 The Custodian.........................................................52
Section 5.6 Notices and Reports...................................................53
Section 5.7 Issuance of Additional Shares, ADSs etc...............................55
Section 5.8 Indemnification.......................................................56
Section 5.9 Fees and Charges of Depositary........................................58
Section 5.10 Pre-Release...........................................................59
Section 5.11 Restricted Securities Owners..........................................60
ARTICLE 6. AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement..................................................61
Section 6.2 Termination...........................................................62
ARTICLE 7. MISCELLANEOUS
Section 7.1 Counterparts..........................................................64
Section 7.2 No Third-Party Beneficiaries..........................................65
Section 7.3 Severability..........................................................65
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect..............65
Section 7.5 Notices...............................................................66
Section 7.6 Governing Law and Jurisdiction........................................67
Section 7.7 Assignment............................................................70
Section 7.8 Compliance with U.S. Securities Laws..................................70
Section 7.9 Titles................................................................70
EXHIBIT A [FORM OF RECEIPT]
EXHIBIT B FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
</TABLE>
iii
<PAGE> 5
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of November 4, 1999, by and among (i)
CHARTERED SEMICONDUCTOR MANUFACTURING LTD, a company incorporated under the laws
of the Republic of Singapore, and its successors (the "Company"), (ii) CITIBANK,
N.A., a national banking association organized under the laws of the United
States of America acting in its capacity as depositary, and any successor
depositary hereunder (the "Depositary"), and (iii) all Holders and Beneficial
Owners of American Depositary Shares evidenced by American Depositary Receipts
issued hereunder (all such capitalized terms as hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company has duly authorized and has outstanding ordinary
shares, par value S$0.26 per share (the "Shares"), which are listed for trading
on the Stock Exchange of Singapore Limited; and
WHEREAS, the Company desires to establish with the Depositary an ADR
facility to provide for the deposit of the Shares and the creation of American
Depositary Shares representing the Shares so deposited and for the execution and
delivery of American Depositary Receipts evidencing such American Depositary
Shares; and
WHEREAS, the Depositary is willing to act as the Depositary for such
facility upon the terms set forth in this Deposit Agreement; and
WHEREAS, the American Depositary Receipts evidencing the American
Depositary Shares issued pursuant to the terms of this Deposit Agreement are to
be substantially in the form of Exhibit
1
<PAGE> 6
A attached hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement; and
WHEREAS, certain American Depositary Shares to be issued pursuant to
the terms of this Deposit Agreement are to be quoted on the Nasdaq National
Market; and
WHEREAS, the Board of Directors of the Company (or an authorized
committee thereof) has duly approved (i) the execution and delivery of this
Deposit Agreement on behalf of the Company and (ii) the actions of the Company
and the transactions contemplated herein.
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE 1.
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
Section 1.1 "Affiliate" shall have the meaning assigned to such term by
the Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined).
Section 1.2 "American Depositary Share(s)" and "ADS(s)" shall mean the
rights and interests in the Deposited Securities granted to the Holders and
Beneficial Owners pursuant to the terms and conditions of this Deposit Agreement
and the American Depositary Receipts issued hereunder. Each American Depositary
Share shall represent ten (10) Shares, until (i) there shall occur either a
distribution upon Deposited Securities referred to in Section 4.2 or a change in
Deposited Securities referred to in Section 4.11 and (ii) with respect to such
occurrence additional
2
<PAGE> 7
American Depositary Shares are not issued. Thereafter each American Depositary
Share shall represent the number of Shares and/or Deposited Securities as
specified in such Sections.
Section 1.3 "ADS Record Date" shall have the meaning given to such term
in Section 4.9.
Section 1.4 "Applicant" shall have the meaning given to such term in
Section 5.10.
Section 1.5 "Beneficial Owner" shall mean, as to any ADS, any person or
entity having a beneficial interest deriving from the ownership of such ADS. A
Beneficial Owner may or may not be the Holder of the ADR(s) evidencing such
ADSs. A Beneficial Owner who is not a Holder shall be able to exercise any right
or receive any benefit hereunder solely through the person or entity who is the
Holder of the ADR(s) evidencing the ADSs owned by such Beneficial Owner.
Section 1.6 "Business Day" shall mean any day on which both the banks
in Singapore and the banks in New York are open for business.
Section 1.7 "CDP" shall mean The Central Depositary (Pte) Limited,
which provides the book-entry settlement system for equity securities traded in
Singapore, or any successor entity thereto.
Section 1.8 "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
Section 1.9 "Company" shall mean Chartered Semiconductor Manufacturing
Ltd, a company incorporated and existing under the laws of Singapore, having its
principal office at 60 Woodlands Industrial Park D, Street 2, Singapore 738406,
and its successors.
Section 1.10 "Custodian" shall mean, as of the date hereof, Citibank
Nominees Singapore Pte Ltd, a subsidiary of the Depositary, having its principal
office at 300 Tampines
3
<PAGE> 8
Avenue #07-00, Tampines Junction, Singapore 529653, as the custodian for the
purposes of this Deposit Agreement, and any other entity that may be appointed
by the Depositary pursuant to the terms of Section 5.5 as successor, substitute
or additional custodian hereunder, as the context shall require. The term
"Custodian" shall mean any Custodian individually or all custodians
collectively, as the context requires.
Section 1.11 "Deliver" and "Delivery" shall mean, when used in respect
of American Depositary Shares, Receipts, Deposited Securities and Shares, the
physical delivery of the certificate representing such security, or the
electronic delivery of such security by means of book-entry transfer, if
available.
Section 1.12 "Deposit Agreement" shall mean this Deposit Agreement and
all exhibits hereto, as the same may from time to time be amended and
supplemented in accordance with the terms hereof.
Section 1.13 "Depositary" shall mean Citibank, N.A., a national banking
association organized under the laws of the United States, in its capacity as
depositary under the terms of this Deposit Agreement, and any successor
depositary hereunder.
Section 1.14 "Deposited Securities" shall mean Shares at any time
deposited under this Deposit Agreement and any and all other securities,
property and cash held by the Depositary or the Custodian in respect thereof,
subject, in the case of cash, to the provisions of Section 4.8. The collateral
delivered in connection with Pre-Release Transactions described in Section 5.10
hereof shall not constitute Deposited Securities.
Section 1.15 "Dollars" and "$" shall refer to the lawful currency of
the United States.
4
<PAGE> 9
Section 1.16 "DTC" shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in the Depository Trust
Company, and any successor thereto.
Section 1.17 "DTC Participant" shall mean any financial institution (or
any nominee of such institution) having one or more participant accounts with
DTC for receiving, holding and delivering the securities and cash held in DTC.
Section 1.18 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
Section 1.19 "Foreign Currency" shall mean currency other than Dollars.
Section 1.20 "Holder" shall mean the person or entity in whose name a
Receipt is registered on the books of the Depositary (or the Registrar, if any)
maintained for such purpose. A Holder may or may not be a Beneficial Owner. If a
Holder is not the Beneficial Owner of the ADSs evidenced by the Receipt
registered in its name, such Holder nonetheless shall be deemed to have all
requisite authority to act on behalf of the Beneficial Owners of the ADSs
evidenced by such Receipt.
Section 1.21 "Pre-Release Transaction" shall have the meaning set forth
in Section 5.10.
Section 1.22 "Principal Office" when used with respect to the
Depositary, shall mean the principal office of the Depositary at which at any
particular time its depositary receipts business shall be administered, which,
at the date of this Deposit Agreement, is located at 111 Wall Street, New York,
New York 10043, U.S.A. If the address of the principal office of the Depositary
5
<PAGE> 10
changes after the date of this Deposit Agreement, the Depositary shall, without
unreasonable delay and at its own expense, give written notice thereof to the
Company and the Holders.
Section 1.23 "Receipt(s)"; "American Depositary Receipt(s)" and
"ADR(s)" shall mean the certificate(s) issued by the Depositary to evidence the
American Depositary Shares issued under the terms of this Deposit Agreement, as
such Receipts may be amended from time to time in accordance with the provisions
of this Deposit Agreement. A Receipt may evidence any number of American
Depositary Shares and may, in the case of American Depositary Shares held
through a central depository such as DTC, be in the form of a "Balance
Certificate."
Section 1.24 "Registrar" shall mean the Depositary or any bank or trust
company having an office in the Borough of Manhattan, The City of New York,
which shall be appointed by the Depositary to register issuances and transfers
of Receipts as herein provided, and shall include any co-registrar appointed by
the Depositary for such purposes. Registrars (other than the Depositary) may be
removed and substitutes appointed by the Depositary, with the prior consent of
the Company. Each Registrar (other than the Depositary) appointed pursuant to
this Deposit Agreement shall be required to give notice in writing to the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms of this Deposit Agreement.
Section 1.25 "Restricted Securities" shall mean Shares, Deposited
Securities or ADSs, which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and are subject to resale limitations under the
Securities Act or the rules issued thereunder, or (ii) are held by an officer or
director (as such terms are defined under Regulation C of the Securities Act) or
other Affiliate of the Company and are subject to selling or resale limitations,
as the case may be, under the Securities Act
6
<PAGE> 11
or the rules and regulations promulgated thereunder, or (iii) are subject to
other restrictions on sale or deposit under the laws of the United States,
Singapore, or under a shareholder agreement or the Memorandum and Articles of
Association of the Company or under the regulations of an applicable securities
exchange unless, in each case, such Shares, Deposited Securities or ADSs are
being sold to persons other than an Affiliate of the Company in a transaction
(i) covered by an effective resale registration statement, or (ii) exempt from
the registration requirements of the Securities Act (as hereinafter defined),
and the Shares, Deposited Securities or ADSs will not be, when acquired by such
person(s) or entity(ies), Restricted Securities.
Section 1.26 "Securities Act" shall mean the United States Securities
Act of 1933, as from time to time amended.
Section 1.27 "Share Registrar" shall mean M&C Services Private Limited
or a depository institution organized under the laws of Singapore, which carries
out the duties of registrar for the Shares or any successor as Share Registrar
for such Shares appointed by the Company.
Section 1.28 "Shares" shall mean the Company's ordinary shares, par
value S$0.26 per share, validly issued and outstanding and fully paid and may,
if the Depositary so agrees after consultation with the Company, include
evidence of the right to receive Shares; provided that in no event shall Shares
include evidence of the right to receive Shares with respect to which the full
purchase price has not been paid or Shares as to which preemptive rights have
theretofore not been validly waived or exercised; provided further, however,
that, if there shall occur any change in par value, split-up, consolidation,
reclassification, conversion or any other event described in Section 4.11 in
respect of the Shares, the term "Shares" shall thereafter, to the maximum extent
permitted
7
<PAGE> 12
by law, represent the successor securities resulting from such change in par
value, split-up, consolidation, exchange, conversion, reclassification or event.
Section 1.29 "Singapore" shall mean the Republic of Singapore.
Section 1.30 "Singapore Dollars" and "S$" shall refer to the lawful
currency of Singapore.
Section 1.31 "United States" shall have the meaning assigned to it in
Regulation S as promulgated by the Commission under the Securities Act.
ARTICLE 2.
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 Appointment of Depositary. The Company hereby appoints the
Depositary as depositary for the Deposited Securities and hereby authorizes and
directs the Depositary to act in accordance with the terms set forth in this
Deposit Agreement. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms of this
Deposit Agreement, shall be deemed for all purposes to (a) be a party to and
bound by the terms of this Deposit Agreement and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all actions contemplated in this Deposit Agreement with respect to the
ADSs, to adopt any and all procedures necessary to comply with applicable law
and to take such action as the Depositary in its sole discretion may deem
necessary or appropriate to carry out the purposes of this Deposit Agreement.
Section 2.2 Form and Transferability of Receipts.
8
<PAGE> 13
2.2.1. Form. ADSs shall be evidenced by definitive Receipts
which shall be engraved, printed, lithographed or produced in such other manner
as may be agreed upon by the Company and the Depositary. Receipts may be issued
under this Deposit Agreement in denominations of any whole number of ADSs. The
Receipts shall be substantially in the form set forth in Exhibit A to this
Deposit Agreement, with any appropriate insertions, modifications and omissions,
in each case as otherwise contemplated in this Deposit Agreement or required by
law. Receipts shall be (i) dated, (ii) signed by the manual or facsimile
signature of a duly authorized signatory of the Depositary, (iii) countersigned
by the manual or facsimile signature of a duly authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar for the
registration of issuances and transfers of Receipts. No Receipt and no ADS
evidenced thereby shall be entitled to any benefits under this Deposit Agreement
or be valid or enforceable for any purpose against the Depositary or the
Company, unless such Receipt shall have been so dated, signed, countersigned and
registered. Receipts bearing the facsimile signature of a duly-authorized
signatory of the Depositary or the Registrar, who at the time of signature was a
duly authorized signatory of the Depositary or the Registrar, as the case may
be, shall bind the Depositary, notwithstanding the fact that such signatory has
ceased to be so authorized prior to the delivery of such Receipt by the
Depositary.
The Receipts shall bear a CUSIP number that is different from any CUSIP
number that may be assigned to any depositary receipts subsequently issued
pursuant to any other arrangement between the Depositary (or any other
depositary) and the Company and which are not Receipts issued hereunder.
9
<PAGE> 14
2.2.2. Legends. The Receipts may, with the prior written
consent of the Company (which consent shall not be unreasonably withheld), and
upon the written request of the Company, shall be, endorsed with or have
incorporated in the text thereof, such legends or recitals not inconsistent with
the provisions of this Deposit Agreement (i) as may be necessary to enable the
Depositary or the Company to perform its obligations hereunder, (ii) as may be
required to comply with any applicable laws or regulations, or with the rules
and regulations of any securities exchange or market upon which ADSs may be
traded, listed or quoted, or to conform with any usage with respect thereto,
(iii) as may be necessary to indicate any special limitations or restrictions to
which any particular Receipts or ADSs are subject by reason of the date of
issuance of the Deposited Securities or otherwise, or (iv) as may be required by
any book-entry system in which the ADSs are held.
2.2.3. Title. Subject to the limitations contained herein and
in the Receipt, title to a Receipt (and to each ADS evidenced thereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that such Receipt has been properly endorsed or
is accompanied by proper instruments of transfer. Notwithstanding any notice to
the contrary, the Depositary may deem and treat the Holder of a Receipt as the
absolute owner thereof for all purposes. Neither the Depositary nor the Company
shall have any obligation or be subject to any liability under this Deposit
Agreement or any Receipt to any holder of a Receipt or any Beneficial Owner
unless such holder is the Holder of such Receipt registered on the books of the
Depositary or, in the case of a Beneficial Owner, such Beneficial Owner or the
Beneficial Owner's representative is the Holder registered on the books of the
Depositary.
10
<PAGE> 15
2.2.4. Book-Entry Systems. The Depositary has made
arrangements for, and DTC has agreed to, the acceptance of the American
Depositary Shares into DTC's book-entry settlement system. A single ADR in the
form of a "Balance Certificate" will evidence all ADSs held through DTC and will
be registered in the name of the nominee for DTC (currently "Cede & Co.") and
will provide that it represents the aggregate amount of ADSs from time to time
indicated in the records of the Depositary as being issued hereunder and that
the aggregate amount of ADSs represented thereby may from time to time be
increased or decreased by making adjustments on such records of the Depositary
and of DTC or its nominee as hereinafter provided. As such, the nominee for DTC
will be the only "Holder" of the ADR evidencing all ADSs held through DTC.
Citibank, N.A. (or such other entity as is appointed by DTC) may hold the
"Balance Certificate" as custodian for DTC. Each Beneficial Owner of ADSs held
through DTC must rely upon the procedures of DTC and the DTC Participants to
exercise or be entitled to any rights attributable to such ADSs. The DTC
Participants shall for all purposes be deemed to have all requisite power and
authority to act on behalf of the Beneficial Owners of the ADSs held in the DTC
Participants' respective accounts in DTC and the Depositary shall for all
purposes be authorized to rely upon any instructions and information given to it
by DTC Participants on behalf of Beneficial Owners of ADSs. So long as ADSs are
held through DTC or unless otherwise required by law, ownership of beneficial
interests in the ADR registered in the name of the nominee for DTC will be shown
on, and transfers of such ownership will be effected only through, records
maintained by (i) DTC (or its nominee), or (ii) DTC Participants (or their
nominees).
The Depositary acknowledges that if at any time DTC notifies the
Company and the Depositary that it (or its nominee) is unwilling or unable to
continue as the Holder of the
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"Balance Certificate" evidencing all ADSs held through DTC or if at any time it
ceases to be a clearing agency registered under the Exchange Act, and in either
case a successor Holder is not appointed by the Company within 90 days, then (i)
beneficial interests in the "Balance Certificate" shall be exchanged for
Receipts in certificated form, (ii) the Depositary shall obtain a supply of
definitive certificated Receipts substantially in the form of Exhibit A hereto,
and (iii) the Depositary shall, upon the order of the Company, execute and
deliver such definitive certificated Receipts registered in such names and in
such amounts as directed by the Holder in exchange for the "Balance
Certificate".
Section 2.3 Deposit with Custodian. Subject to the terms and conditions
of this Deposit Agreement and applicable law, Shares or evidence of rights to
receive Shares (in each case, other than Restricted Securities) may be deposited
by any person or entity (including the Depositary in its individual capacity but
subject, however, in the case of the Company or any Affiliate of the Company, to
Section 5.7 hereof) at any time, whether or not the transfer books of the
Company or the Share Registrar, if any, are closed, by Delivery of the Shares to
the Custodian, and (A) (in the case of Shares represented by certificates issued
in registered form) appropriate instruments of transfer or endorsement, in a
form satisfactory to the Custodian or, (in the case of Shares represented by
certificates in bearer form) of the requisite coupons and talons pertaining
thereto, (B) such certifications and payments (including, without limitation,
the Depositary's fees and related charges) and evidence of such payments
(including, without limitation, stamping or otherwise marking such Shares by way
of receipt) as may be required by the Depositary or the Custodian in accordance
with the provisions of this Deposit Agreement and applicable law, (C) if the
Depositary so requires, a written order directing the Depositary to execute and
deliver to, or upon the written order of, the
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<PAGE> 17
person(s) or entity(ies) stated in such order a Receipt or Receipts for the
number of American Depositary Shares representing the Shares so deposited, (D)
evidence satisfactory to the Depositary (which may be an opinion of counsel)
that all necessary approvals have been granted by, or there has been compliance
with the rules and regulations of, any applicable governmental agency in
Singapore, including those which are then performing the function of the
regulation of currency exchange, and (E) if the Depositary so requires, (i) an
agreement, assignment or other instrument satisfactory to the Depositary or the
Custodian which provides for the prompt transfer by any person or entity in
whose name the Shares are or have been recorded to the Custodian of any
distribution, or right to subscribe for additional Shares or to receive other
property in respect of any such deposited Shares or, in lieu thereof, such
indemnity or other agreement as shall be satisfactory to the Depositary or the
Custodian and (ii) if the Shares are registered in the name of the person or
entity on whose behalf they are presented for deposit, a proxy or proxies
entitling the Custodian to exercise voting rights in respect of the Shares for
any and all purposes until the Shares so deposited are registered in the name of
the Depositary, the Custodian or any nominee.
Without limiting any other provision of this Deposit Agreement, the
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit (a) any Restricted Securities, except as expressly
permitted by Section 2.12 herein, nor (b) any fractional Shares or fractional
Deposited Securities nor (c) a number of Shares or Deposited Securities which,
upon application of the ADS to Shares ratio, would give rise to fractional ADSs.
No Share shall be accepted for deposit unless accompanied by evidence, if
required by the Depositary, that is reasonably satisfactory to the Depositary or
the Custodian that all conditions to such deposit have been satisfied by the
person or entity depositing such Shares under the laws and regulations of
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<PAGE> 18
Singapore and any necessary approval has been granted by any governmental body
in Singapore, if any, which is then performing the function of the regulation of
currency exchange. The Depositary may issue Receipts against evidence of rights
to receive Shares from the Company, any agent of the Company or any custodian,
registrar, transfer agent, clearing agency or other entity involved in ownership
or transaction records in respect of the Shares. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of Shares
furnished by the Company or any such custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of such Shares.
Section 2.4 Registration of Shares. The Depositary shall instruct the
Custodian upon each delivery of certificates representing registered Shares
being deposited hereunder with the Custodian (or other Deposited Securities
pursuant to Article IV hereof), together with the other documents above
specified, to present such certificate or certificates, together with the
appropriate instrument or instruments of transfer or endorsement, duly stamped,
to the Share Registrar for transfer and registration of the Shares (as soon as
transfer and registration can be accomplished and at the expense of the person
or entity for whom the deposit is made) in the name of the Depositary, the
Custodian or a nominee of either. Deposited Securities shall be held by the
Depositary or by a Custodian for the account and to the order of the Depositary
or a nominee in each case on behalf of the Holders and Beneficial Owners, at
such place or places as the Depositary or the Custodian shall determine.
Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under this Deposit Agreement any Shares or other Deposited
Securities required to be registered under the provisions of the Securities Act,
unless a registration statement is in effect as
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to such Shares or other Deposited Securities, or any Shares or Deposited
Securities the deposit of which would violate any provisions of the Memorandum
and Articles of Association of the Company.
Section 2.5 Execution and Delivery of Receipts. The Depositary has made
arrangements with the Custodian to confirm to the Depositary (i) that a deposit
of Shares has been made pursuant to Section 2.3 hereof, (ii) that any such
Deposited Securities have been recorded in the name of the Depositary, Custodian
or a nominee of either on the shareholders' register maintained by or on behalf
of the Company, if registered Shares have been deposited or, if deposit is made
by book-entry transfer, confirmation of such transfer in the books of the CDP,
(iii) that all required documents, if any, have been received, and (iv) the
person(s) or entity(ies) to whom or upon whose order American Depositary Shares
are deliverable in respect thereof and the number of American Depositary Shares
to be so delivered thereby. Such notification may be made by letter, cable,
telex, swift message or, at the risk and expense of the person making the
deposit, by facsimile or other means of electronic transmission. Upon receiving
such notice from the Custodian, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall issue the American Depositary Shares
representing the Shares so deposited and shall execute and Deliver at its
Principal Office to or upon the order of the person(s) or entity(ies) named in
the notice delivered to the Depositary Receipt(s) registered in the name or
names requested by such person(s) or entity(ies) and evidencing the aggregate
number of American Depositary Shares to which such person(s) or entity(ies) are
entitled, but only upon payment to the Depositary of the charges of the
Depositary for accepting a deposit, issuing American Depositary Shares and
executing and delivering such Receipt(s) (as set forth in Section 5.9 and
Exhibit B hereto) and all taxes and governmental charges and fees payable
15
<PAGE> 20
in connection with such deposit and the transfer of the Shares and the issuance
of the Receipt(s). The Depositary shall only issue American Depositary Shares in
whole numbers and deliver American Depositary Receipts evidencing whole numbers
of American Depositary Shares. Nothing herein shall prohibit any Pre-Release
Transaction upon the terms set forth in this Deposit Agreement.
Section 2.6 Transfer, Combination and Split-up of Receipts.
2.6.1. Transfer. The Depositary or the Registrar, if any,
shall, without unreasonable delay, register the transfer of Receipts (and of the
ADSs represented thereby) on the books maintained for such purpose and the
Depositary shall cancel such Receipts and execute new Receipts evidencing the
same aggregate number of ADSs as those evidenced by the Receipts cancelled by
the Depositary, shall cause the Registrar to countersign such new Receipts and
shall Deliver such new Receipts to or upon the order of the person or entity
entitled thereto, if each of the following conditions has been satisfied: (i)
the Receipts have been duly Delivered by the Holder (or by a duly authorized
attorney of the Holder) to the Depositary at its Principal Office for the
purpose of effecting a transfer thereof, (ii) the surrendered Receipts have been
properly endorsed or are accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard securities industry
practice), (iii) the surrendered Receipts have been duly stamped (if required by
the laws of the State of New York or of the United States or any other
applicable law), and (iv) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and governmental charges
(as are set forth in Section 5.9 and Exhibit B hereto) have been paid, subject,
however, in each case, to the terms and conditions of the applicable Receipts,
of this Deposit Agreement and of applicable law , in each case as in effect at
the time thereof.
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2.6.2. Combination & Split Up. The Depositary or the
Registrar, if any, shall, without unreasonable delay, register the split-up or
combination of Receipts (and of the ADSs represented thereby) on the books
maintained for such purpose and the Depositary shall cancel such Receipts and
execute new Receipts for the number of ADSs requested, but in the aggregate not
exceeding the number of ADSs evidenced by the Receipts cancelled by the
Depositary, shall cause the Registrar to countersign such new Receipts and shall
Deliver such new Receipts to or upon the order of the Holder thereof, if each of
the following conditions has been satisfied: (i) the Receipts have been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or
combination thereof, and (ii) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and governmental charges
(as are set forth in Section 5.9 and Exhibit B hereto) have been paid, subject,
however, in each case, to the terms and conditions of the applicable Receipts,
of this Deposit Agreement and of applicable law, in each case, as in effect at
the time thereof.
2.6.3. Co-Transfer Agents. The Depositary may, with the prior
written consent of the Company (which consent shall not be unreasonably
withheld), and upon the written request of the Company, shall promptly, appoint
one or more co-transfer agents for the purpose of effecting transfers,
combinations and split-ups of Receipts at designated transfer offices on behalf
of the Depositary. In carrying out its functions, a co-transfer agent may
require evidence of authority and compliance with applicable laws and other
requirements by Holders, Beneficial Owners, or persons entitled to such Receipts
and will be entitled to protection and indemnity to the same extent as the
Depositary or the Company. Such co-transfer agents may be removed and
substitutes appointed by the Depositary. Each co-transfer agent appointed under
this Section 2.6 (other than the
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Depositary) shall give notice in writing to the Depositary accepting such
appointment and agreeing to be bound by the applicable terms of this Deposit
Agreement.
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities.
The Holder of ADSs shall be entitled to Delivery by book-entry transfer (or in
the case of certificates, Delivery at the Custodian's principal office) of the
Deposited Securities at the time represented by the ADS(s) upon satisfaction of
each of the following conditions: (i) the Holder (or a duly authorized attorney
of the Holder) has duly Delivered ADSs to the Depositary at its Principal Office
(and if applicable, the Receipts evidencing such ADSs) for the purpose of
withdrawal of the Deposited Securities represented thereby, (ii) if so required
by the Depositary, the Receipts Delivered to the Depositary for such purpose
have been properly endorsed in blank or are accompanied by proper instruments of
transfer in blank (including signature guarantees in accordance with standard
securities industry practice), (iii) if so required by the Depositary, the
Holder of the ADSs has executed and delivered to the Depositary a written order
directing the Depositary to cause the Deposited Securities being withdrawn to be
Delivered to or upon the written order of the person(s) or entity(ies)
designated in such order, and (iv) all applicable fees and charges of, and
expenses incurred by, the Depositary and all applicable taxes and governmental
charges (as are set forth in Section 5.9 and Exhibit B hereof) have been paid,
subject, however, in each case, to the terms and conditions of the Receipts
evidencing the surrendered ADSs, of this Deposit Agreement, of the Company's
Memorandum and Articles of Association and of any applicable laws and the rules
of the CDP, and to any provisions of or governing the Deposited Securities, in
each case as in effect at the time thereof.
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Upon satisfaction of each of the conditions specified above,
the Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable,
the Receipts evidencing the ADSs so Delivered), (ii) shall direct the Registrar
to record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's principal office the Deposited Securities
represented by the ADSs so cancelled together with any certificate or other
document of or relating to title for the Deposited Securities, or evidence of
the electronic transfer thereof (if available), and any other securities,
property and cash to which such Holder is then entitled in respect of such
Receipts, as the case may be, to or upon the written order of the person(s) or
entity(ies) designated in the order delivered to the Depositary for such
purpose, subject however, in each case, to the terms and conditions of this
Deposit Agreement, of the Receipts evidencing the ADSs so cancelled, of the
Memorandum and Articles of Association of the Company, of applicable laws and of
the rules of the CDP, and to the terms and conditions of or governing the
Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less
than one Share. In the case of the Delivery of ADSs representing a number other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person or entity surrendering such ADSs the number of ADSs representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional
Shares represented by the ADSs so surrendered and remit the proceeds of such
sale (net of (a) applicable fees and charges of, and
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<PAGE> 24
expenses incurred by, the Depositary and (b) taxes withheld) to the person(s) or
entity(ies) designated in the order delivered to the Depositary for such
purpose.
Notwithstanding anything else contained in any Receipt or this
Deposit Agreement, the Depositary may make delivery at the Principal Office of
the Depositary of (i) any cash dividends or cash distributions, or (ii) any
proceeds from the sale of any distributions of shares or rights, which are at
the time held by the Depositary in respect of the Deposited Securities
represented by the ADSs surrendered for cancellation and withdrawal. At the
request, risk and expense of any Holder so surrendering ADSs, and for the
account of such Holder, the Depositary shall direct the Custodian to forward (to
the extent permitted by law) any cash or other property (other than securities)
held by the Custodian in respect of the Deposited Securities represented by such
ADSs to the Depositary for delivery at the Principal Office of the Depositary.
Such direction shall be given by letter or, at the request, risk and expense of
such Holder, by cable, telex or facsimile transmission.
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc.
2.8.1. Additional Requirements. As a condition precedent to
the execution and delivery, registration, registration of transfer, split-up,
combination or surrender of any Receipt, the delivery of any distribution
thereon or withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
ADSs or of a Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in Section 5.9 and Exhibit B hereof, (ii) the production
of proof satisfactory
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to it as to the identity and genuineness of any signature or any other matter
contemplated by Section 3.1 hereof and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of Receipts or
American Depositary Shares or to the withdrawal of Deposited Securities and (B)
such reasonable regulations, if any, as the Depositary and the Company may
establish consistent with the provisions of this Deposit Agreement and
applicable law.
2.8.2. Additional Limitations. The issuance of ADSs against
deposits of Shares generally or against deposits of particular Shares may be
suspended, or the issuance of ADSs against the deposit of particular Shares may
be withheld, or the registration of transfer of Receipts in particular instances
may be refused, or the registration of transfers of Receipts generally may be
suspended, during any period when the transfer books of the Company, the
Depositary, a Registrar or the Share Registrar are closed or if any such action
is deemed necessary or advisable by the Depositary or the Company, in good
faith, at any time or from time to time because of any requirement of law, any
government or governmental body or commission or any securities exchange on
which the ADSs or Shares are listed, or under any provision of this Deposit
Agreement or provisions of, or governing, the Deposited Securities, or any
meeting of shareholders of the Company or for any other reason, subject, in all
cases, to Section 7.8 hereof.
2.8.3. Regulatory Restrictions. Notwithstanding any provision
of this Deposit Agreement or any Receipt to the contrary, Holders are entitled
to surrender outstanding ADSs to withdraw the Deposited Securities at any time
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the deposit of Shares in connection with voting at
a shareholders' meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, (iii) compliance with any U.S. or non-U.S. laws or
governmental
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regulations relating to the Receipts or to the withdrawal of the Deposited
Securities, and (iv) other circumstances specifically contemplated by Section
I.A.(l) of the General Instructions to Form F-6 (as such General Instructions
may be amended from time to time).
Section 2.9 Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost, or stolen, the Depositary shall execute and deliver a new
Receipt of like tenor at the expense of the Holder (a) in the case of a
mutilated Receipt, in exchange of and substitution for such mutilated Receipt
upon cancellation thereof, or (b) in lieu of and in substitution for such
destroyed, lost, or stolen Receipt, after the Holder thereof (i) has submitted
to the Depositary a written request for such exchange and substitution before
the Depositary has notice that the Receipt has been acquired by a bona fide
purchaser, (ii) has provided such security or indemnity (including an indemnity
bond) as may be required by the Depositary to save it and any of its agents
harmless, and (iii) has satisfied any other reasonable requirements imposed by
the Depositary, including, without limitation, evidence satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, the authenticity
thereof and the Holder's ownership thereof.
Section 2.10 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records. All Receipts surrendered to the Depositary shall be
canceled by the Depositary. Canceled Receipts shall not be entitled to any
benefits under this Deposit Agreement or be valid or enforceable against the
Depositary for any purpose. The Depositary is authorized to destroy Receipts so
canceled, provided the Depositary maintains a record of all destroyed Receipts.
Any ADSs held in book-entry form (i.e., through accounts at DTC) shall be deemed
canceled when the Depositary causes the number of ADSs evidenced by the Balance
Certificate to be reduced by the number of ADSs surrendered to it (without the
need to physically destroy the Balance Certificate).
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Section 2.11 Partial Entitlement ADSs. In the event any Shares are
deposited which entitle the holders thereof to receive a per-share distribution
or other entitlement in an amount different from the Shares then on deposit (the
Shares then on deposit collectively, "Full Entitlement Shares" and the Shares
with different entitlement, "Partial Entitlement Shares"), the Depositary shall
(i) cause the Custodian to hold Partial Entitlement Shares separate and distinct
from Full Entitlement Shares, and (ii) subject to the terms of this Agreement,
issue ADSs and deliver ADRs representing Partial Entitlement Shares which are
separate and distinct from the ADSs and ADRs representing Full Entitlement
Shares, by means of separate CUSIP numbering and legending (if necessary)
("Partial Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs",
respectively). If and when Partial Entitlement Shares become Full Entitlement
Shares, the Depositary shall (a) give notice thereof to Holders of Partial
Entitlement ADSs and give Holders of Partial Entitlement ADRs the opportunity to
exchange such Partial Entitlement ADRs for Full Entitlement ADRs, (b) cause the
Custodian to transfer the Partial Entitlement Shares into the account of the
Full Entitlement Shares, and (c) take such actions as are necessary to remove
the distinctions between (i) the Partial Entitlement ADRs and ADSs, on the one
hand, and (ii) the Full Entitlement ADRs and ADSs on the other. Holders and
Beneficial Owners of Partial Entitlement ADSs shall only be entitled to the
entitlements of Partial Entitlement Shares. Holders and Beneficial Owners of
Full Entitlement ADSs shall be entitled only to the entitlements of Full
Entitlement Shares. All provisions and conditions of this Deposit Agreement
shall apply to Partial Entitlement ADRs and ADSs to the same extent as Full
Entitlement ADRs and ADSs, except as contemplated by this Section 2.11. The
Depositary is authorized to take any and all other actions as may be necessary
(including, without limitation, making the necessary notations on Receipts) to
give effect to the terms of this Section 2.11. The
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<PAGE> 28
Company agrees to give timely written notice to the Depositary if any Shares
issued or to be issued are Partial Entitlement Shares and shall assist the
Depositary with the establishment of procedures enabling the identification of
Partial Entitlement Shares upon Delivery to the Custodian.
Section 2.12 Restricted ADSs. The Depositary shall, at the request and
expense of the Company, establish procedures enabling the deposit hereunder of
Shares that are Restricted Securities in order to enable the holder of such
Shares to hold its ownership interests in such Restricted Securities in the form
of ADSs issued under the terms hereof (such Shares, "Restricted Shares"). Upon
receipt of a written request from the Company to accept Restricted Shares for
deposit hereunder, the Depositary agrees to establish procedures permitting the
deposit of such Restricted Shares and the issuance of ADSs representing such
deposited Restricted Shares (such ADSs, the "Restricted ADSs," and the ADRs
evidencing such Restricted ADSs, the "Restricted ADRs"). The Company shall
assist the Depositary in the establishment of such procedures and agrees that it
shall take all steps necessary and satisfactory to the Depositary to ensure that
the establishment of such procedures does not violate the provisions of the
Securities Act or any other applicable laws or regulations. The depositors of
such Restricted Shares and the holders of the Restricted ADSs may be required
prior to the deposit of such Restricted Shares, the transfer of the Restricted
ADRs and the Restricted ADSs evidenced thereby or the withdrawal of the
Restricted Shares represented by Restricted ADSs to provide such written
certifications or agreements as the Depositary or the Company may require. The
Company shall provide to the Depositary in writing the legend(s) to be affixed
to the Restricted ADRs, which legends shall (i) be in a form satisfactory to the
Depositary and (ii) set forth the specific circumstances under which the
Restricted ADRs and the Restricted ADSs represented thereby may be transferred
or the Restricted Shares withdrawn.
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<PAGE> 29
The Restricted ADSs issued upon the deposit of Restricted Shares shall be
separately identified on the books of the Depositary and the Restricted Shares
so deposited shall be held separate and distinct from the other Deposited
Securities held hereunder. Neither the Restricted Shares nor the Restricted ADSs
shall be eligible for Pre-Release Transactions described in Section 5.10 hereof.
The Restricted ADSs shall not be eligible for inclusion in any book-entry
settlement system, including, without limitation, DTC, and shall not in any way
be fungible with the ADSs issued under the terms hereof that are not Restricted
ADSs. The Restricted ADRs and the Restricted ADSs evidenced thereby shall be
transferable only by the Holder thereof upon delivery to the Depositary of (i)
all documentation otherwise contemplated by this Deposit Agreement and (ii) an
opinion of counsel reasonably satisfactory to the Depositary setting forth,
inter alia, the conditions upon which the Restricted ADR presented is, and the
Restricted ADSs evidenced thereby are, transferable by the Holder thereof under
applicable securities laws and the transfer restrictions contained in the legend
set forth on the Restricted ADR presented for transfer. Except as set forth in
this Section 2.12 and except as required by applicable law, the Restricted ADRs
and the Restricted ADSs evidenced thereby shall be treated as ADRs and ADSs
issued and outstanding under the terms of this Deposit Agreement.
ARTICLE 3.
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF RECEIPTS
Section 3.1 Proofs, Certificates and Other Information. Any person or
entity presenting Shares for deposit, any Holder and any Beneficial Owner may be
required by the Depositary or the Company, and every Holder and Beneficial Owner
agrees, from time to time to provide to the Depositary, the Custodian or the
Company such proof of citizenship or residence,
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<PAGE> 30
taxpayer status, payment of all applicable taxes or other governmental charges,
exchange control approval, legal or beneficial ownership of ADSs and Deposited
Securities, compliance with applicable laws and the terms of this Deposit
Agreement and the provisions of, or governing, the Deposited Securities, to
execute such certifications and to make such representations and warranties, and
to provide such other information and documentation (or, in the case of Shares
in registered form presented for deposit, such information relating to the
registration on the books of the Company or of the appointed agent of the
Company for the registration and transfer of Shares) as the Depositary or the
Custodian reasonably may deem necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its
obligations hereunder. The Depositary and the Registrar, as applicable, may, and
at the reasonable request of the Company, shall, withhold the execution or
delivery or registration of transfer of any Receipt or the distribution or sale
of any dividend or distribution of rights or of the proceeds thereof or, to the
extent not limited by the terms of Section 7.8 hereof, the delivery of any
Deposited Securities until such proof or other information is filed or such
certifications are executed, or such representations are made, or such other
documentation or information provided, in each case to the Depositary's, the
Registrar's and the Company's reasonable satisfaction. The Depositary shall from
time to time advise the Company of (i) any such proofs of citizenship or
residence, taxpayer status, or exchange control approval which it receives from
Holders and Beneficial Owners, and (ii) any other information or documents which
the Company may reasonably request and which the Depositary shall request and
receive from any Holder or Beneficial Owner or any person or entity presenting
Shares for deposit or ADSs for cancellation and withdrawal and shall provide the
Company, in a timely manner, with copies, or originals thereof upon the request
of the Company. Nothing herein shall obligate the Depositary to
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(i) obtain any information for the Company if not provided by the Holders or
Beneficial Owners or (ii) verify or vouch for the accuracy of the information so
provided by the Holders or Beneficial Owners.
Section 3.2 Liability for Taxes and Other Charges. If any tax or other
governmental charge shall become payable with respect to any ADR or any
Deposited Securities or American Depositary Shares, such tax or other
governmental charge shall be payable by the Holders and Beneficial Owners to the
Depositary. The Company, the Custodian and/or the Depositary may withhold or
deduct from any distributions made in respect of Deposited Securities and may
sell for the account of a Holder and/or Beneficial Owner any or all of the
Deposited Securities and apply such distributions and sale proceeds in payment
of such taxes (including applicable interest and penalties) or charges, the
Holder and the Beneficial Owner remaining liable for any deficiency. The
Custodian may refuse the deposit of Shares and the Depositary may refuse to
issue ADSs, to deliver ADRs, register the transfer, split-up or combination of
ADRs and (subject to Section 7.8) the withdrawal of Deposited Securities until
payment in full of such tax, charge, penalty or interest is received. Every
Holder and Beneficial Owner agrees to indemnify the Depositary, the Company, the
Custodian, and any of their agents, officers, employees and Affiliates for, and
to hold each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
Section 3.3 Representations and Warranties on Deposit of Shares. Each
person or entity depositing Shares under this Deposit Agreement shall be deemed
thereby to represent and warrant that (i) such Shares and the certificates
therefor are duly authorized, validly issued, fully paid, non-assessable and
legally obtained by such person or entity, (ii) all preemptive (and similar)
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rights, if any, with respect to such Shares have been validly waived or
exercised, (iii) the person or entity making such deposit is duly authorized so
to do, (iv) the Shares presented for deposit are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claim, and are not,
except with respect to Restricted Securities being deposited in accordance with
Section 2.12 herein, and the ADSs issuable upon such deposit will not be, except
as contemplated in Section 2.12 herein, Restricted Securities, and (v) the
Shares presented for deposit have not been stripped of any right or entitlement.
Such representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of American Depositary Shares in respect
thereof and the transfer of such American Depositary Shares. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person or entity
depositing Shares, to take any and all actions necessary to correct the
consequences thereof.
Section 3.4 Compliance with Information Requests. Notwithstanding any
other provision of this Deposit Agreement, each Holder and Beneficial Owner
agrees to comply with requests from the Company pursuant to Singapore law, the
rules and requirements of the Stock Exchange of Singapore Limited, and any other
stock exchange on which the Shares are, or will be, registered, traded or
listed, the rules and requirements of the CDP or any other clearing system
through which transactions in the Shares may be settled or the Memorandum and
Articles of Association of the Company, which are made to provide information,
inter alia, as to the capacity in which such Holder or Beneficial Owner owns
American Depositary Shares (and Shares as the case may be) and regarding the
identity of any other person(s) or entity(ies) interested in such American
Depositary Shares and the nature of such interest and various other matters,
whether or not they are Holders and/or Beneficial Owners at the time of such
request. The Depositary agrees to use its
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reasonable efforts to forward, upon the request of the Company, and at the
Company's expense, any such request from the Company to the Holders and to
forward to the Company any such responses to such requests received by the
Depositary.
Section 3.5 Ownership Restrictions. Notwithstanding any other provision
in this Deposit Agreement, the Company may restrict transfers of the Shares
where such transfer might result in ownership of Shares exceeding limits imposed
by applicable law or the Memorandum and Articles of Association of the Company.
The Company may also restrict, in such manner as it deems appropriate, transfers
of the American Depositary Shares where such transfer may result in the total
number of Shares represented by the American Depositary Shares owned by a single
Holder or Beneficial Owner to exceed any such limits. The Company may, in its
sole discretion but subject to applicable law, instruct the Depositary to take
action with respect to the ownership interest of any Holder or Beneficial Owner
in excess of the limits set forth in the preceding sentence, including, but not
limited to, the imposition of restrictions on the transfer of American
Depositary Shares, the removal or limitation of voting rights or mandatory sale
or disposition on behalf of a Holder or Beneficial Owner of the Shares
represented by the American Depositary Shares held by such Holder or Beneficial
Owner in excess of such limitations, if and to the extent such disposition is
permitted by applicable law and the Memorandum and Articles of Association of
the Company.
ARTICLE 4.
THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions. Whenever the Depositary receives
confirmation from the Custodian of receipt of any cash dividend or other cash
distribution on any Deposited Securities, or receives proceeds from the sale of
any Shares, rights, securities or other entitlements
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under the terms hereof, the Depositary will, if at the time of receipt thereof
any amounts received in a Foreign Currency can, in the reasonable judgment of
the Depositary (pursuant to Section 4.8 hereof), be converted on a practicable
basis into Dollars transferable to the United States, promptly convert or cause
to be converted such cash dividend, distribution or proceeds into Dollars (on
the terms described in Section 4.8) and will distribute promptly the amount thus
received (net of (a) the applicable fees and charges of, and expenses incurred
by, the Depositary and (b) taxes withheld) to the Holders entitled thereto as of
the ADS Record Date in proportion to the number of American Depositary Shares
held as of the ADS Record Date. The Depositary shall distribute only such
amount, however, as can be distributed without attributing to any Holder a
fraction of one cent, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
become part of the next sum received by the Depositary for distribution to
Holders of ADSs outstanding at the time of the next distribution. If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders of the American Depositary Shares
representing such Deposited Securities shall be reduced accordingly. Such
withheld amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority. Evidence of payment thereof
by the Company shall be forwarded by the Company to the Depositary upon request.
Section 4.2 Distribution in Shares. If any distribution upon any
Deposited Securities consists of a dividend in, or free distribution of, Shares,
the Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the
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Depositary, the Custodian or any of their nominees. Upon receipt of confirmation
of such deposit from the Custodian, the Depositary shall establish the ADS
Record Date upon the terms described in Section 4.9 hereof and shall, subject to
Section 5.9 hereof, either (i) distribute to the Holders as of the ADS Record
Date in proportion to the number of American Depositary Shares held as of the
ADS Record Date, additional American Depositary Shares, which represent in the
aggregate the number of Shares received as such dividend, or free distribution,
subject to the other terms of this Deposit Agreement (including, without
limitation, (a) the applicable fees and charges of, and expenses incurred by,
the Depositary and (b) taxes), or (ii) if additional American Depositary Shares
are not so distributed, each American Depositary Share issued and outstanding
after the ADS Record Date shall, to the extent permissible by law, thenceforth
also represent rights and interests in the additional integral number of Shares
distributed upon the Deposited Securities represented thereby (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes). In lieu of delivering fractional American Depositary Shares, the
Depositary shall sell the number of Shares or American Depositary Shares, as the
case may be, represented by the aggregate of such fractions and distribute the
net proceeds upon the terms described in Section 4.1.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company, in the
fulfillment of its obligation under Section 5.7 hereof, has furnished an opinion
of U.S. counsel determining that Shares must be registered under the Securities
Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
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<PAGE> 36
sale, as the Depositary deems necessary and practicable, and the Depositary
shall distribute the net proceeds of any such sale (after deduction of such (a)
taxes and (b) fees and charges of, and expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms described in Section 4.1. The Depositary
shall hold and/or distribute any unsold balance of such property in accordance
with the provisions of this Deposit Agreement.
Section 4.3 Elective Distributions in Cash or Shares. Whenever the
Company intends to distribute a dividend payable at the election of the holders
of Shares in cash or in additional Shares, the Company shall use its best
efforts to give notice thereof to the Depositary at least 60 days prior to the
proposed distribution stating whether or not it wishes such elective
distribution to be made available to Holders of ADSs. Upon receipt of notice
indicating that the Company wishes such elective distribution to be made
available to Holders of ADSs, the Depositary shall consult with the Company to
determine, and the Company shall assist the Depositary in its determination,
whether it is lawful and reasonably practicable to make such elective
distribution available to the Holders of ADSs. The Depositary shall promptly
make such elective distribution available to Holders only if (i) the Depositary
shall have determined that such distribution is reasonably practicable and (ii)
the Depositary shall have received satisfactory documentation within the terms
of Section 5.7. If the above conditions are not satisfied, the Depositary shall,
to the extent permitted by law, distribute to the Holders, on the basis of the
same determination as is made in the local market in respect of the Shares for
which no election is made, either (x) cash upon the terms described in Section
4.1 or (y) additional ADSs representing such additional Shares upon the terms
described in Section 4.2. If the above conditions are satisfied, the Depositary
shall establish an ADS Record Date (on the terms described in Section 4.9) and
establish procedures to enable Holders to
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elect the receipt of the proposed dividend in cash or in additional ADSs. The
Company shall assist the Depositary in establishing such procedures to the
extent necessary. If a Holder elects to receive the proposed dividend (x) in
cash, the dividend shall be distributed upon the terms described in Section 4.1,
or (y) in ADSs, the dividend shall be distributed upon the terms described in
Section 4.2. Nothing herein shall obligate the Depositary to make available to
Holders a method to receive the elective dividend in Shares (rather than ADSs).
There can be no assurance that Holders generally, or any Holder in particular,
will be given the opportunity to receive elective distributions on the same
terms and conditions as the holders of Shares.
Section 4.4 Distribution of Rights to Purchase Shares.
4.4.1. Distribution to ADS Holders. Whenever the Company
intends to distribute to the holders of the Deposited Securities rights to
subscribe for additional Shares, the Company shall use its best efforts to give
notice thereof to the Depositary at least 60 days prior to the proposed
distribution stating whether or not it wishes such rights to be made available
to Holders of ADSs. Upon receipt of a notice indicating that the Company wishes
such rights to be made available to Holders of ADSs, the Depositary shall
consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such rights available to the Holders. The Depositary shall promptly make
such rights available to Holders only if (i) the Company shall have requested
that such rights be made available to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7, and (iii)
the Depositary shall have determined that such distribution of rights is
reasonably practicable. In the event any of the conditions set forth above are
not satisfied, the Depositary shall proceed with the sale of the rights as
contemplated in Section 4.4.2 below. In the
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event all conditions set forth above are satisfied, the Depositary shall
establish an ADS Record Date (upon the terms described in Section 4.9) and
establish procedures to distribute rights to purchase additional ADSs (by means
of warrants or otherwise) and to enable the Holders to exercise such rights
(upon payment of applicable (a) fees and charges of, and expenses incurred by,
the Depositary and (b) taxes). The Company shall assist the Depositary to the
extent necessary in establishing such procedures. Nothing herein shall obligate
the Depositary to make available to the Holders a method to exercise rights to
subscribe for Shares (rather than ADSs).
4.4.2. Sale of Rights. If (i) the Company does not request the
Depositary to make the rights available to Holders or requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive
satisfactory documentation within the terms of Section 5.7 or determines it is
not reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary, upon consultation with the Company, shall determine whether it is
lawful and reasonably practicable to sell such rights, in a riskless principal
capacity, at such place and upon such terms (including public or private sale)
as it may deem proper. The Company shall assist the Depositary to the extent
necessary to determine such legality and practicability. The Depositary shall,
upon such sale, convert and distribute proceeds of such sale (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes)
upon the terms set forth in Section 4.1.
4.4.3. Lapse of Rights. If the Depositary is unable to make
any rights available to Holders upon the terms described in Section 4.4.1 or to
arrange for the sale of the rights upon the terms described in Section 4.4.2,
the Depositary shall allow such rights to lapse.
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Neither the Depositary nor the Company shall be responsible
for (i) any failure to determine that it may be lawful or practicable to make
such rights available to Holders in general or any Holders in particular, or
(ii) any foreign exchange exposure or loss incurred in connection with such
sale, or exercise. The Depositary shall not be responsible for the content of
any materials forwarded to the Holders on behalf of the Company in connection
with the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4,
if registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect. In
the event that the Company, the Depositary or the Custodian shall be required to
withhold and does withhold from any distribution of property (including rights)
an amount on account of taxes or other governmental charges, the amount
distributed to the Holders of American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. In the event that the
Depositary determines that any distribution in property (including Shares and
rights to subscribe therefor) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable to pay any such
taxes or charges. There can be no assurance that Holders generally, or any
Holder in particular, will be given the opportunity to receive or exercise
rights on the same terms and conditions as the
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holders of Shares or be able to exercise such rights. Nothing herein shall
obligate the Company to file any registration statement in respect of any rights
or Shares or other securities to be acquired upon the exercise of such rights.
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase
Shares.
4.5.1. Whenever the Company intends to distribute to the
holders of Deposited Securities property other than cash, Shares or rights to
purchase additional Shares, the Company shall give timely notice thereof to the
Depositary and shall indicate whether or not it wishes such distribution to be
made to Holders of ADSs. Upon receipt of a notice indicating that the Company
wishes such distribution be made to Holders of ADSs, the Depositary shall
consult with the Company, and the Company shall assist the Depositary, to
determine whether such distribution to Holders is lawful and reasonably
practicable. The Depositary shall not make such distribution unless (i) the
Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution is reasonably practicable.
4.5.2. Upon receipt of satisfactory documentation and the
request of the Company to distribute property to Holders of ADSs and after
making the requisite determinations set forth in (a) above, the Depositary shall
distribute as promptly as practicable the property so received to the Holders of
record, as of the ADS Record Date, in proportion to the number of ADSs held by
them respectively and in such manner as the Depositary may deem reasonably
practicable for accomplishing such distribution (i) upon receipt of payment or
net of the applicable fees and charges of, and expenses incurred by, the
Depositary, and (ii) net of any taxes withheld. The
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Depositary may dispose of all or a portion of the property so distributed and
deposited, in such amounts and in such manner (including public or private sale)
as the Depositary may deem reasonably practicable or necessary to satisfy any
taxes (including applicable interest and penalties) or other governmental
charges applicable to the distribution.
4.5.3. If (i) the Company does not request the Depositary to
make such distribution to Holders or requests not to make such distribution to
Holders, (ii) the Depositary does not receive satisfactory documentation within
the terms of Section 5.7, or (iii) the Depositary reasonably determines that all
or a portion of such distribution is not reasonably practicable, the Depositary
shall as promptly as practicable sell or cause such property to be sold in a
public or private sale, at such place or places and upon such terms as it may
deem reasonably proper and shall as promptly as practicable (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes)
to the Holders as of the ADS Record Date upon the terms of Section 4.1. If the
Depositary is unable to sell such property, the Depositary may, upon
consultation with the Company, dispose of such property in any way it deems
reasonably practicable under the circumstances.
Section 4.6 Distributions with Respect to Deposited Securities
in Bearer Form. Subject to the terms of this Article IV, distributions in
respect of Deposited Securities that are held by the Depositary in bearer form
shall be made to the Depositary for the account of the respective Holders of
Receipts with respect to which any such distribution is made upon due
presentation by the Depositary or the Custodian to the Company of any relevant
coupons, talons, or certificates. The Company shall promptly notify the
Depositary of such distributions. The Depositary or the Custodian shall promptly
present such coupons, talons or certificates, as the case may be, in connection
with any such distribution.
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Section 4.7 Redemption. If the Company intends to exercise any
right of redemption in respect of any of the Deposited Securities, the Company
shall use its reasonable best efforts to give notice thereof to the Depositary
at least 60 days prior to the intended date of redemption which notice shall set
forth the particulars of the proposed redemption. Upon receipt of such (i)
notice and (ii) satisfactory documentation given by the Company to the
Depositary within the terms of Section 5.7, and only if the Depositary shall
have determined that such proposed redemption is practicable, the Depositary
shall mail to each Holder a notice setting forth the intended exercise by the
Company of the redemption rights and any other particulars set forth in the
Company's notice to the Depositary. The Depositary shall instruct the Custodian
to present to the Company the Deposited Securities in respect of which
redemption rights are being exercised against payment of the applicable
redemption price. Upon receipt of confirmation from the Custodian that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall convert, transfer, and distribute the
proceeds (net of applicable (a) fees and charges of, and the expenses incurred
by, the Depositary, and (b) taxes), retire ADSs and cancel ADRs upon delivery of
such ADSs by Holders thereof and the terms set forth in Sections 4.1 and 6.2
hereof. If less than all outstanding Deposited Securities are redeemed, the ADSs
to be retired will be selected by lot or on a pro rata basis, as may be
determined by the Depositary. The redemption price per ADS shall be the per
share amount received by the Depositary upon the redemption of the Deposited
Securities represented by American Depositary Shares (subject to the terms of
Section 4.8 hereof and the applicable fees and charges of, and expenses incurred
by, the
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Depositary, and taxes) multiplied by the number of Deposited Securities
represented by each ADS redeemed.
Section 4.8 Conversion of Foreign Currency. Whenever the
Depositary or the Custodian shall receive Foreign Currency, by way of dividends
or other distributions or the net proceeds from the sale of securities, property
or rights, which in the reasonable judgment of the Depositary can at such time
be converted on a practicable basis, by sale or in any other manner that it may
determine in accordance with applicable law, into Dollars transferable to the
United States and distributable to the Holders entitled thereto, the Depositary
shall, as promptly as practicable, convert or cause to be converted, by sale or
in any other manner that it may reasonably determine, such Foreign Currency into
Dollars, and shall, as promptly as practicable, distribute such Dollars (net of
any applicable fees, any reasonable and customary expenses incurred in such
conversion and any expenses incurred on behalf of the Holders in complying with
currency exchange control or other governmental requirements) to the Holders in
accordance with the terms of the applicable sections of this Deposit Agreement.
If the Depositary shall have distributed warrants or other instruments that
entitle the holders thereof to such Dollars, the Depositary shall distribute
such Dollars to the holders of such warrants and/or instruments upon surrender
thereof for cancellation, in either case without liability for interest thereon.
Such distribution may be made upon an averaged or other practicable basis
without regard to any distinctions among Holders on account of any application
of exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to
a particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall promptly file such
application for approval or license, if reasonably practical.
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If at any time the Depositary shall determine that in its
reasonable judgment the conversion of any Foreign Currency and the transfer and
distribution of proceeds of such conversion received by the Depositary is not
reasonably practical or lawful, or if any approval or license of any
governmental authority or agency thereof that is required for such conversion,
transfer and distribution is denied or, in the reasonable opinion of the
Depositary, not obtainable at a reasonable cost or within a reasonable period,
the Depositary shall, upon consultation with the Company, (i) as promptly as
practicable make such conversion and distribution in Dollars to the Holders for
whom such conversion, transfer and distribution is lawful and practicable, (ii)
as promptly as practicable distribute the Foreign Currency (or an appropriate
document evidencing the right to receive such Foreign Currency) to Holders for
whom such distribution is lawful and practicable or (iii) hold (or cause the
Custodian to hold) such Foreign Currency (without liability for interest
thereon) for the respective accounts of the Holders entitled to receive the
same.
Section 4.9 Fixing of ADS Record Date. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each American Depositary Share, or whenever the
Depositary shall receive notice of any meeting of, or solicitation of consents
or of proxies, of holders of Shares or other Deposited Securities, or whenever
the Depositary shall find it necessary or convenient in connection with the
giving of any notice, solicitation of any consent or any other matter, the
Depositary, upon consultation with the Company, shall fix a record date (the
"ADS Record Date") for the determination of the Holders of Receipts who shall be
entitled to receive such distribution, to give
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<PAGE> 45
instructions for the exercise of voting rights at any such meeting, to give or
withhold such consent, to receive such notice or solicitation or to otherwise
take action, or to exercise the rights of Holders with respect to such changed
number of Shares represented by each American Depositary Share. The Depositary
shall make reasonable efforts to establish the ADS Record Date as closely as
possible to the applicable record date for the Deposited Securities (if any).
Subject to applicable law and the provisions of Section 4.1 through 4.8 and to
the other terms and conditions of this Deposit Agreement, only the Holders of
Receipts at the close of business in New York on such ADS Record Date shall be
entitled to receive such distribution, to give such voting instructions, to
receive such notice or solicitation, or otherwise take action.
Section 4.10 Voting of Deposited Securities. As soon as practicable
after receipt of notice of any meeting at which the holders of Shares are
entitled to vote, or of solicitation of consents or proxies from holders of
Shares or other Deposited Securities, the Depositary shall fix the ADS Record
Date in respect of such meeting or solicitation of consent or proxy. The
Depositary shall, if requested by the Company in writing in a timely manner (the
Depositary having no obligation to take any further action if the request shall
not have been received by the Depositary at least 21 days prior to the date of
such vote or meeting) and at the Company's expense, as soon as practicable, mail
to Holders: (a) such notice of meeting or solicitation of consent or proxy, (b)
a statement that the Holders at the close of business on the ADS Record Date
will be entitled, subject to any applicable law, the Memorandum and Articles of
Association of the Company and the provisions of or governing the Deposited
Securities (which provisions, if any, shall be summarized in pertinent part by
the Company), to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the Shares or other Deposited Securities
represented by such Holder's American
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Depositary Shares, and (c) a brief statement as to the manner in which such
instructions may be given. Voting instructions may be given only in respect of a
number of American Depositary Shares representing an integral number of Shares
or other Deposited Securities. Upon the timely receipt of written instructions
of a Holder of American Depositary Shares on the ADS Record Date, the Depositary
shall endeavor, insofar as reasonably practicable and permitted under applicable
law and the provisions of the Memorandum and Articles of Association of the
Company and the provisions of the Deposited Securities, to vote or cause the
Custodian to vote the Shares and/or other Deposited Securities (in person or by
proxy) represented by such Holder's American Depositary Shares in accordance
with such instructions.
Neither the Depositary nor the Custodian shall, under any
circumstances exercise any discretion as to voting and neither the Depositary
nor the Custodian shall vote, attempt to exercise the right to vote, or in any
way make use of, for purposes of establishing a quorum or otherwise, the Shares
or other Deposited Securities represented by American Depositary Shares except
pursuant to and in accordance with such written instructions from Holders. If
voting instructions are received by the Depositary from any Holder on or before
the date established by the Depositary for the receipt of such instructions,
which are signed but without further indication as to specific instructions, the
Depositary will deem such Holder to have instructed the Depositary to vote in
favor of the items set forth in such instructions. Shares or other Deposited
Securities represented by American Depositary Shares for which no specific
voting instructions are received by the Depositary from the Holder shall not be
voted.
Voting at any meeting of shareholders is by a show of hands
unless a poll is demanded. Neither the Depositary nor the Custodian shall demand
voting by a poll. In the event
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a poll is demanded, voting of Shares and/or other Deposited Securities shall be
in accordance with the written instructions received from the Holders giving
such instructions.
There can be no assurance that Holders generally or any Holder
in particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
Section 4.11 Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, stock split (either forward or reverse),
cancellation, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for, or in conversion of or replacement of or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under this Deposit Agreement, and the Receipts shall,
subject to the provisions of this Deposit Agreement and applicable law, evidence
American Depositary Shares representing the right to receive such securities.
The Depositary may, with the Company's approval, and shall, if the Company shall
so request, subject to the terms of this Deposit Agreement and the receipt of an
opinion of counsel to the Company (if an opinion is requested by the Depositary)
reasonably satisfactory to the Depositary that such distributions are not in
violation of any applicable laws or regulations, execute and deliver additional
Receipts as in the case of a stock dividend or stock split, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts as in the
case of a reverse stock split and in either case, with any necessary
modifications to the form of Receipt contained in Exhibit A hereto, to give
effect to such corporate change. The Company agrees to, jointly with the
Depositary, amend the Registration Statement on
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Form F-6 as filed with the Commission to permit the issuance of such new form of
Receipts. Notwithstanding the foregoing, in the event that any security so
received may not be lawfully distributed to some or all Holders, the Depositary
may, with the Company's approval, and shall, if the Company requests, subject
to, if requested by the Depositary, the receipt of an opinion of counsel to the
Company reasonably satisfactory to the Depositary that such action is not in
violation of any applicable laws or regulations, sell such securities at public
or private sale, at such place or places and upon such terms as it may deem
reasonably proper and may allocate the net proceeds of such sales (net of (a)
fees and charges of, and expenses incurred by, the Depositary and (b) taxes) for
the account of the Holders otherwise entitled to such securities upon an
averaged or other practicable basis without regard to any distinctions among
such Holders and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to
Section 4.1. Neither the Depositary nor the Company shall be responsible for (i)
any failure to determine that it may be lawful or feasible to make such
securities available to Holders in general or to any Holder in particular or any
foreign exchange exposure or loss incurred in connection with such sale. The
Depositary shall not be responsible for any liability to the purchaser of such
securities.
Section 4.12 Available Information. The Company is subject to the
periodic reporting requirements of the Exchange Act and accordingly files
certain information with the Commission. These reports and documents can be
inspected and copied at the public reference facilities maintained by the
Commission located at Judiciary Plaza, 450 Fifth Street, N.W., Washington D.C.
20549 and at the Commission's New York City office located at Seven World Trade
Center, 13th Floor, New York, New York 10048.
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Section 4.13 Reports. The Depositary shall make available for
inspection by Holders at its Principal Office any reports and communications,
including any proxy soliciting materials, received from the Company which are
both (a) received by the Depositary, the Custodian, or the nominee of either of
them as the holder of the Deposited Securities and (b) made generally available
to the holders of such Deposited Securities by the Company. The Depositary shall
also mail to Holders copies of such reports when furnished by the Company
pursuant to Section 5.6.
Section 4.14 List of Holders. Promptly upon written request by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares of all Holders.
Section 4.15 Taxation. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent reasonably
practicable, the Depositary or the Custodian will take reasonable administrative
actions to obtain tax refunds, reduced withholding of tax at source on dividends
and other benefits under applicable tax treaties or laws with respect to
dividends and other distributions on the Deposited Securities. Holders and
Beneficial Owners may be required from time to time, and in a timely manner, to
file such proof of taxpayer status, residence and beneficial ownership (as
applicable), to execute such certificates and to make such representations and
warranties, or to provide any other
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information or documents, as the Depositary or the Custodian may deem necessary
or proper to fulfill the Depositary's or the Custodian's obligations under
applicable law. Holders and Beneficial Owners shall indemnify the Depositary,
the Company, the Custodian and any of their respective directors, employees,
agents and Affiliates against, and hold each of them harmless from, any claims
by any governmental authority with respect to taxes, additions to tax, penalties
or interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained (except with respect to taxes which are
payable by the Company as provided in Section 3.2).
If the Company (or any of its agents) withholds from any distribution
any amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (i.e. stamp duty tax, capital gains or other
similar tax), the Company shall (and shall cause such agent to) remit promptly
to the Depositary information about such taxes or governmental charges withheld
or paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form
satisfactory to the Depositary. The Depositary shall, to the extent required by
U.S. law or to the extent requested in writing by the Company, report to Holders
any taxes withheld by it or the Custodian, and, if such information is provided
to it by the Company, any taxes withheld by the Company. The Depositary and the
Custodian shall not be required to provide the Holders with any evidence of the
remittance by the Company (or its agents) of any taxes withheld, or of the
payment of taxes by the Company, except to the extent the evidence is provided
by the Company to the Depositary. None of the Depositary, the Custodian and the
Company shall be liable for any failure by any Holder or Beneficial Owner to
obtain the benefits of credits on the non-U.S. tax paid against such Holder's or
Beneficial Owner's income tax liability.
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The Depositary is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company,
except to the extent the Company provides such information to the Depositary for
distribution to the Holders and Beneficial Owners. Neither the Depositary nor
the Company shall incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of the
American Depositary Shares, including without limitation, tax consequences
resulting from the Company (or any of its subsidiaries) being treated as a
"Foreign Personal Holding Company," or as a "Passive Foreign Investment Company"
(in each case as defined in the U.S. Internal Revenue Code and the regulations
issued thereunder) or otherwise.
ARTICLE 5.
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration, registration
of transfers, combination and split-up of Receipts, the surrender of Receipts
for the purpose of withdrawal of Deposited Securities in accordance with the
provisions of this Deposit Agreement.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
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object other than the business of the Company or other than a matter related to
this Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the
Receipts, at any time or from time to time, when deemed reasonably necessary or
advisable by it in good faith in connection with the performance of its duties
hereunder, or at the reasonable written request of the Company subject, in all
cases, to Section 7.8 hereof.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or appoint a Registrar or
one or more co-registrars for registration of Receipts and transfers,
combinations and split-ups, and to countersign such Receipts in accordance with
any requirements of such exchanges or systems. Such Registrar or co-registrars
may be removed and a substitute or substitutes appointed by the Depositary.
Section 5.2 Exoneration. Neither the Depositary nor the Company shall
be obligated to do or perform any act which is inconsistent with the provisions
of this Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of this Deposit Agreement, by reason of
any provision of any present or future law or regulation of the United States,
Singapore or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or on account of the possible criminal
or civil penalties or restraint, or by reason of any provision, present or
future of the Memorandum and Articles of Association of the Company or any
provision of or governing any Deposited Securities, or by reason of any act of
God or war or other circumstances beyond its control (including, without
limitation, nationalization, expropriation,
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currency restrictions, work stoppage, strikes, civil unrest, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement or
in the Memorandum and Articles of Association of the Company or provisions of or
governing Deposited Securities, (iii) for any action or inaction in reliance
upon the advice of or information from legal counsel, accountants, any person or
entity presenting Shares for deposit, any Holder, any Beneficial Owner or
authorized representative thereof, or any other person or entity believed by it
in good faith to be competent to give such advice or information, (iv) for the
inability by a Holder or Beneficial Owner to benefit from any distribution,
offering, right or other benefit which is made available to holders of Deposited
Securities but is not, under the terms of this Deposit Agreement, made available
to Holders of American Depositary Shares or (v) for any consequential or
punitive damages for any breach of the terms of this Deposit Agreement.
The Depositary, its controlling persons, its agents, any Custodian and
the Company, its controlling persons and its agents may rely and shall be
protected in acting upon any written notice, request or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
Section 5.3 Standard of Care. The Company and its agents assume no
obligation and shall not be subject to any liability under this Deposit
Agreement or the Receipts to Holders or Beneficial Owners or other persons,
except that the Company and its agents agree to perform their obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
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The Depositary and its agents assume no obligation and shall not be
subject to any liability under this Deposit Agreement or the Receipts to Holders
or Beneficial Owners or other persons, except that the Depositary and its agents
agree to perform their obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, the
Company, nor any of their respective controlling persons, or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner in which any vote is cast or the effect of any vote, provided
that any such action or omission is in good faith and in accordance with the
terms of this Deposit Agreement. Neither the Depositary nor, to the extent
permitted by law, the Company, shall incur any liability for any failure to
determine that any distribution or action may be lawful or reasonably
practicable, for any investment risk associated with acquiring an interest in
the Deposited Securities, for the validity or worth of the Deposited Securities
or for any tax consequences that may result from the ownership of ADSs, Shares
or Deposited Securities, for the credit-worthiness of any third party, or for
allowing any rights to lapse upon the terms of this Deposit Agreement. The
Depositary shall not incur liability for the content of any information
submitted to
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it by the Company for distribution to the Holders or for any inaccuracy of any
translation thereof or the failure or timeliness of any notice from the Company.
Section 5.4 Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company (whereupon the Depositary shall be entitled to
take the actions contemplated in Section 6.2 hereof), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided. The Depositary may at any time be removed
by the Company by written notice of such removal, which removal shall be
effective on the earlier of (i) the 60th day after delivery thereof to the
Depositary (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 6.2 hereof), or (ii) upon the appointment by the Company
of a successor depositary and its acceptance of such appointment as hereinafter
provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, the City of New York. Every successor depositary shall
be required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor. The predecessor depositary,
upon payment of all sums due it and on the written request of the Company shall,
(i) execute and deliver an instrument transferring to such successor all rights
and powers of
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such predecessor hereunder (other than as contemplated in Sections 5.8 and 5.9),
(ii) duly assign, transfer and deliver all right, title and interest to the
Deposited Securities to such successor, and (iii) deliver to such successor a
list of the Holders of all outstanding Receipts and such other information
relating to Receipts and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly mail notice of its
appointment to such Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
Section 5.5 The Custodian. The Depositary has initially appointed
Citibank Nominees Singapore Pte Ltd as Custodian for the purpose of this Deposit
Agreement. The Custodian or its successors in acting hereunder shall be subject
at all times and in all respects to the direction of the Depositary for the
Shares, for which the Custodian acts as custodian and shall be responsible
solely to it. If any Custodian resigns or is discharged from its duties
hereunder with respect to any Deposited Securities and no other Custodian has
previously been appointed hereunder, the Depositary, with the prior written
consent of the Company, shall promptly appoint a substitute custodian that is
organized under the laws of Singapore. The Depositary shall require such
resigning or discharged Custodian to deliver the Deposited Securities held by
it, together with all such records maintained by it as Custodian with respect to
such Deposited Securities as the Depositary may request, to the Custodian
designated by the Depositary. Whenever the Depositary determines, with the prior
approval of the Company, that it is appropriate to do so, it may appoint an
additional custodian with respect to any Deposited Securities, or discharge the
Custodian with respect to any Deposited Securities and appoint a substitute
custodian, which shall thereafter be Custodian
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hereunder with respect to the Deposited Securities. Immediately
upon any such change, the Depositary shall give prompt notice thereof in writing
to all Holders of Receipts, each other Custodian and the Company.
Upon the appointment of any successor depositary, any Custodian then
acting hereunder shall, unless otherwise instructed by the Depositary, continue
to be the Custodian of the Deposited Securities without any further act or
writing, and shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
Section 5.6 Notices and Reports. As soon as practicable after the first
date on which the Company gives notice, by publication or otherwise, of any
meeting of holders of Shares or other Deposited Securities, or of any adjourned
meeting of such holders, or of the taking of any action by such holders other
than at a meeting, or of the taking of any action in respect of any cash or
other distributions or the offering of any rights in respect of Deposited
Securities, the Company shall transmit to the Depositary and the Custodian a
copy of the notice thereof in the English language but otherwise in the form
given or to be given to holders of Shares or other Deposited Securities. The
Company shall also furnish to the Custodian and the Depositary a summary, in
English, of any applicable provisions or proposed provisions of the Memorandum
and Articles of Association of the Company that may be relevant or pertain to
such notice of meeting or be the subject of a vote thereat.
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The Company will also transmit to the Depositary (a) an
English language version of the other notices, reports and communications which
are made generally available by the Company to holders of its Shares or other
Deposited Securities and (b) the English-language versions of the Company's
annual and semi-annual reports prepared in accordance with the applicable
requirements of the Commission. The Depositary shall arrange, at the request of
the Company and at the Company's expense, for the mailing of copies thereof to
all Holders or make such notices, reports and other communications available to
all Holders on a basis similar to that for holders of Shares or other Deposited
Securities or on such other basis as the Company may advise the Depositary or as
may be required by any applicable law, regulation or stock exchange requirement.
The Company has delivered to the Depositary and the Custodian a copy of the
Company's Memorandum and Articles of Association along with the provisions of or
governing the Shares and any other Deposited Securities issued by the Company or
any Affiliate of the Company in connection with such Shares, and promptly upon
any amendment thereto or change therein, the Company shall deliver to the
Depositary and the Custodian a copy of such amendment thereto or change therein.
The Depositary may rely upon such copy for all purposes of this Deposit
Agreement.
The Depositary will, at the expense of the Company, make
available a copy of any such notices, reports or communications issued by the
Company and delivered to the Depositary for inspection by the Holders of the
Receipts evidencing the American Depositary Shares representing such Shares
governed by such provisions at the Depositary's Principal Office, at the office
of the Custodian and at any other designated transfer office.
Section 5.7 Issuance of Additional Shares, ADSs etc. The Company agrees
that in the event it or any of its Affiliates proposes (i) an issuance, sale or
distribution of additional
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Shares, (ii) an offering of rights to subscribe for Shares or other Deposited
Securities, (iii) an issuance of securities convertible into or exchangeable for
Shares, (iv) an issuance of rights to subscribe for securities convertible into
or exchangeable for Shares, (v) an elective dividend of cash or Shares, (vi) a
redemption of Deposited Securities, (vii) a meeting of holders of Deposited
Securities, or solicitation of consents or proxies, relating to any
reclassification of securities, merger or consolidation or transfer of assets,
or (viii) any reclassification, recapitalization, reorganization, merger,
consolidation or sale of assets, and in the event that any such transaction
affects the Deposited Securities, the Company, if requested by the Depositary,
will furnish to the Depositary (a) a written opinion of U.S. counsel (reasonably
satisfactory to the Depositary) stating whether or not application of such
transaction to Holders and Beneficial Owners (1) requires a registration
statement under the Securities Act to be in effect or (2) is exempt from the
registration requirements of the Securities Act and (b) an opinion of Singapore
counsel stating that (1) making the transaction available to Holders and
Beneficial Owners does not violate the laws or regulations of Singapore and (2)
all requisite regulatory consents and approvals have been obtained in Singapore.
If the filing of a registration statement is required, the Depositary shall not
have any obligation to proceed with the transaction unless it shall have
received evidence reasonably satisfactory to it that such registration statement
has been declared effective. If, being advised by counsel, the Company
determines that a transaction is required to be registered under the Securities
Act, the Company will either (i) register such transaction to the extent
necessary, (ii) alter the terms of the transaction to avoid the registration
requirements of the Securities Act or (iii) direct the Depositary to take
specific measures, in each case as contemplated in this Deposit Agreement, to
prevent such transaction from violating the registration requirements of the
Securities Act.
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The Company agrees with the Depositary that neither the Company nor any
of its Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or other
Deposited Securities previously issued and reacquired by the Company or by any
such Affiliate, or (ii) issue additional Shares, rights to subscribe for such
Shares, securities convertible into or exchangeable for Shares or rights to
subscribe for such securities, unless such transaction and the securities
issuable in such transaction are exempt from registration under the Securities
Act and, if applicable, the Exchange Act or have been registered under the
Securities Act and, if applicable, the Exchange Act (and such registration
statement has been declared effective).
Notwithstanding anything else contained in this Deposit Agreement,
nothing in this Deposit Agreement shall be deemed to obligate the Company to
file any registration statement in respect of any proposed transaction.
Section 5.8 Indemnification. The Depositary agrees to indemnify the
Company and its directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or omitted
under the terms hereof due to the negligence or bad faith of (i) the Depositary,
(ii) any custodian, registrar or transfer agent which is a subsidiary (as such
term is defined under Regulation C of the Securities Act) or branch of the
Depositary, and (iii) any other Citibank entities performing the function of
custodian, registrar or transfer agent.
The Company agrees to indemnify the (i) the Depositary, (ii) any
custodian, registrar or transfer agent which is a subsidiary (as such term is
defined under Regulation C of the Securities
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Act) or branch of the Depositary and (iii) any other Citibank entities
performing the function of custodian, registrar or transfer agent, and any of
their respective directors, officers, employees, agents and Affiliates (each, an
"Indemnified Person") against, and hold each of them harmless from, any direct
loss, liability, tax, charge or expense of any kind whatsoever (including, but
not limited to, the reasonable fees and expenses of counsel) that may arise out
of acts performed or omitted (x) by an Indemnified Person, except to the extent
such loss, liability, tax, charge or expense is due to the negligence or bad
faith of such Indemnified Person, at the instruction and on behalf of the
Company pursuant to the provisions of this Deposit Agreement or the Receipts or
(y) by the Company or any of its directors, officers, employees, agents and
Affiliates pursuant to the provisions of this Deposit Agreement or the Receipts.
The Company shall not be liable for any loss or liability or expense
which arises out of information (or omissions from such information) relating to
the Indemnified Persons, furnished in writing to the Company by such Indemnified
Person expressly for use in any registration statement, proxy statement or
prospectus under the Securities Act.
The obligations set forth in this Section shall survive the termination
of this Deposit Agreement and the succession or substitution of any party
hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person
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as to the conduct of the defense of such action or claim that may give rise to
an indemnity hereunder, which defense shall be reasonable in the circumstances.
No indemnified person shall compromise or settle any action or claim that may
give rise to an indemnity hereunder without the consent of the indemnifying
person, which consent shall not be unreasonably withheld.
Section 5.9 Fees and Charges of Depositary. The Company, the Holders,
the Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively in the Fee Schedule attached hereto as Exhibit B. All fees
and charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and
charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request. The Company agrees to
promptly pay to the Depositary such other fees and charges and to reimburse the
Depositary for such out-of-pocket expenses as the Depositary and the Company may
agree to in writing from time to time. Responsibility for payment of such
charges may at any time and from time to time be changed by agreement in writing
between the Company and the Depositary. Unless otherwise agreed, the Depositary
shall present its statement for such expenses and fees or charges to the Company
once every three months. The charges and expenses of the Custodian are for the
sole account of the Depositary.
Notwithstanding any provision to the contrary in this Deposit
Agreement, the fees and expenses payable by the Company to the Depositary shall
be paid in accordance with arrangements previously agreed to in writing between
the Company and the Depositary, as well as any further
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agreements which the Depositary and the Company may agree to in writing from
time to time, which terms shall govern in the event of an inconsistency between
such agreements and this Deposit Agreement.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
Section 5.10 Pre-Release. Subject to the further terms and provisions of
this Section 5.10, the Depositary, its Affiliates and their agents, on their own
behalf, may own and deal in any class of securities, including ADSs, of the
Company and its Affiliates. In its capacity as Depositary, the Depositary shall
not lend Shares or ADSs; provided, however, that the Depositary may (i) issue
ADSs prior to the receipt of Shares pursuant to Section 2.3 and (ii) Deliver
Shares prior to the receipt of ADSs for withdrawal of Deposited Securities
pursuant to Section 2.7, including ADSs which were issued under (i) above but
for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) subject to a written agreement whereby the
person or entity (the "Applicant") to whom ADSs or Shares are to be delivered
(w) represents that at the time of the Pre-Release Transaction the Applicant or
its customer owns the Shares or ADSs that are to be delivered by the Applicant
under such Pre-Release Transaction, (x) agrees to indicate the Depositary as
owner of such Shares or ADSs in its records and to hold such Shares or ADSs in
trust for the Depositary until such
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Shares or ADSs are delivered to the Depositary or the Custodian, (y)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs, and (z) agrees to any additional restrictions
or requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, United States government securities or such other
collateral as the Depositary deems appropriate, (c) terminable by the Depositary
on not more than five (5) business days' notice and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs and Shares involved in such
Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above),
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems reasonably appropriate.
The Depositary may also set limits with respect to the number of ADSs
and Shares involved in Pre-Release Transactions with any one person on a case by
case basis as it deems reasonably appropriate. The Depositary may retain for its
own account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not the earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
Section 5.11 Restricted Securities Owners. The Company agrees to provide
the Depositary a list setting forth each of the persons who, to the actual
knowledge of the Company, holds Restricted Securities and agrees to advise each
of the persons so listed that such Restricted Securities are ineligible for
deposit hereunder, except as contemplated by Section 2.12 hereof. Upon each
issuance by the Company of any securities that are Restricted Securities, the
Company shall provide the Depositary with an updated list setting forth, to the
actual knowledge of the Company,
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those persons who beneficially acquired Restricted Securities, and shall advise
each of the persons so listed but not previously notified that such Restricted
Securities are ineligible for deposit hereunder, except as contemplated by
Section 2.12 hereof. The Depositary may rely on such a list or update but shall
not be liable for any action or omission made in reliance thereon. The Company
shall establish reasonable procedures to reasonably ensure that such Restricted
Securities are not deposited hereunder by the holders thereof except as
contemplated by Section 2.12 hereof.
ARTICLE 6.
AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement. The Receipts outstanding at any time,
the provisions of this Deposit Agreement and the form of Receipt attached
thereto and to be issued under the terms thereof may at any time and from time
to time be amended or supplemented by written agreement between the Company and
the Depositary in any respect which they may deem necessary or desirable without
the prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
American Depositary Shares to be registered on Form F-6 under the Securities Act
or (b) the American Depositary Share(s) to be traded solely in electronic
book-entry form and (ii) do not in
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either such case impose or increase any fees or charges to be borne by Holders,
shall be deemed not to materially prejudice any substantial rights of Holders or
Beneficial Owners. Every Holder and Beneficial Owner at the time any amendment
or supplement so becomes effective shall be deemed, by continuing to hold such
American Depositary Share(s), to consent and agree to such amendment or
supplement and to be bound by this Deposit Agreement as amended and supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require amendment or supplement
of this Deposit Agreement to ensure compliance therewith, the Company and the
Depositary may amend or supplement this Deposit Agreement and the Receipt at any
time in accordance with such changed laws, rules or regulations. Such amendment
or supplement to this Deposit Agreement in such circumstances may become
effective before a notice of such amendment or supplement is given to Holders or
within any other period of time as required for compliance with such laws, rules
or regulations.
Section 6.2 Termination. The Depositary shall, at any time at the
written direction of the Company, terminate this Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. If 60
days shall have expired after (i) the Depositary shall have delivered to the
Company a written notice of its election to resign, or (ii) the Company shall
have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4,
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the Depositary may terminate this Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder will, upon surrender of such
Receipt at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of Receipts referred to in Section
2.7 and subject to the conditions and restrictions therein set forth, and upon
payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by such Receipt. If any Receipts shall remain outstanding after the
date of termination of this Deposit Agreement, the Registrar thereafter shall
discontinue the registration of transfers of Receipts, and the Depositary shall
suspend the distribution of dividends to the Holders thereof, and shall not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights as provided
in this Deposit Agreement, and shall continue to deliver Deposited Securities,
subject to the conditions and restrictions set forth in Section 2.7, together
with any dividends or other distributions received with respect thereto and the
net proceeds of the sale of any rights or other property, in exchange for
Receipts surrendered to the Depositary (after deducting, or charging, as the
case may be, in each case, the charges of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder in accordance with the terms
and conditions of this Deposit Agreement and any applicable taxes or
governmental charges or assessments). At any time after the expiration of six
months from the date of termination of this Deposit Agreement, the Depositary
may sell the Deposited Securities then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it hereunder, in an
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unsegregated account, without liability for interest for the pro rata benefit of
the Holders of Receipts whose Receipts have not theretofore been surrendered.
After making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement with respect to the Receipts, the Deposited
Securities and the American Depositary Shares, except to account for such net
proceeds and other cash (after deducting, or charging, as the case may be, in
each case, the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of this Deposit Agreement and any applicable taxes or governmental
charges or assessments). Upon the termination of this Deposit Agreement, the
Company shall be discharged from all obligations under this Deposit Agreement
except for its obligations to the Depositary under Sections 5.8, 5.9 and 7.6
hereof.
ARTICLE 7.
MISCELLANEOUS
Section 7.1 Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
such counterparts together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
Section 7.2 No Third-Party Beneficiaries. This Deposit Agreement is for
the exclusive benefit of the parties hereto (and their successors) and shall not
be deemed to give any legal or equitable right, remedy or claim whatsoever to
any other person or entity, except to the extent specifically set forth in this
Deposit Agreement. Nothing in this Deposit Agreement shall be deemed to give
rise to a partnership or joint venture among the parties nor establish a
fiduciary or similar relationship among the parties. The parties hereto
acknowledge and agree that (i) the
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Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in this Agreement shall (a) preclude the Depositary or any of
its Affiliates from engaging in such transactions or establishing or maintaining
such relationships, (b) obligate the Depositary or any of its Affiliates to
disclose such transactions or relationships or to account for any profit made or
payment received in such transactions or relationships.
Section 7.3 Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect.
The Holders and Beneficial Owners from time to time of American Depositary
Shares shall be parties to this Deposit Agreement and shall be bound by all of
the terms and conditions thereof and of any Receipt by acceptance thereof of any
beneficial interest therein.
Section 7.5 Notices. Any and all notices to be given to the Company
shall be deemed to have been duly given if personally delivered or sent by mail,
air courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to Chartered Semiconductor Manufacturing Ltd, 60 Woodlands Industrial
Park D, Street 2, Singapore 738406, Republic of Singapore, Attention: Legal
Department, or to any other address which the Company may specify in writing to
the Depositary.
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Any and all notices to be given to the Depositary shall be deemed to
have been duly given if personally delivered or sent by mail, air courier or
cable, telex or facsimile transmission, confirmed by letter, addressed to
Citibank, N.A., 111 Wall Street, New York, New York 10043, U.S.A. Attention: ADR
Department, or to any other address which the Depositary may specify in writing
to the Company.
Any and all notices to be given to the Custodian shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to Citibank
Nominees Singapore Pte Ltd, 300 Tampines Avenue #07- 00, Tampines Junction,
Singapore 529653 or to any other address which the Custodian may specify in
writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission, confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the transfer books for Receipts of the
Depositary, or, if such Holder shall have filed with the Depositary a written
request that notices intended for such Holder be mailed to some other address,
at the address specified in such request. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service. The Depositary or
the Company may, however, act upon any cable, telex or facsimile transmission
received by it from the
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other or from any Holder, notwithstanding that such cable, telex or facsimile
transmission shall not subsequently be confirmed by letter as aforesaid.
Section 7.6 Governing Law and Jurisdiction. This Deposit Agreement and
the Receipts shall be interpreted in accordance with, and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by, the laws
of the State of New York without reference to the principles of choice of law
thereof. Notwithstanding anything contained in this Deposit Agreement, any
Receipt or any present or future provisions of the laws of the State of New
York, the rights of holders of Shares and of any other Deposited Securities and
the obligations and duties of the Company in respect of the holders of Shares
and other Deposited Securities, as such, shall be governed by the laws of
Singapore (or, if applicable, such other laws as may govern the Deposited
Securities).
Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers Chartered Semiconductor
Manufacturing, Inc. (the "Agent") now at 1450 McCandless Drive, Milpitas,
California 95035 as its authorized agent to receive and accept for and on its
behalf, and on behalf of its properties, assets and revenues, service by mail of
any and all legal process, summons, notices and documents that may be served in
any suit, action or proceeding brought against the Company in any federal or
state court as described in the preceding sentence or in the next paragraph of
this Section 7.6. If for any reason the Agent shall cease to be
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available to act as such, the Company agrees to designate a new agent on the
terms and for the purposes of this Section 7.6 reasonably satisfactory to the
Depositary. The Company further hereby irrevocably consents and agrees to the
service of any and all legal process, summons, notices and documents in any
suit, action or proceeding against the Company, by service by mail of a copy
thereof upon the Agent (whether or not the appointment of such Agent shall for
any reason prove to be ineffective or such Agent shall fail to accept or
acknowledge such service), with a copy mailed to the Company by registered or
certified air mail, postage prepaid, to its address provided in Section 7.5
hereof. The Company agrees that the failure of the Agent to give any notice of
such service to it shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending and, for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of process upon the
Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
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The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of venue of any actions, suits or proceedings brought in any court as
provided in this Section 7.6, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, and agrees not to plead or claim, any right of immunity
from legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, from
execution of judgment, or from any other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, and consents to
such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with, this Deposit Agreement, any Receipt or the Deposited
Securities.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of this Deposit Agreement, in whole or in part.
Section 7.7 Assignment. Subject to the provisions of Section 5.4 hereof,
this Deposit Agreement may not be assigned by either the Company or the
Depositary.
Section 7.8 Compliance with U.S. Securities Laws. Notwithstanding
anything in this Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1)
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of the General Instructions to Form F-6 Registration Statement, as amended from
time to time, under the Securities Act.
Section 7.9 Titles. All references in this Deposit Agreement to
exhibits, articles, sections, subsections, and other subdivisions refer to the
exhibits, articles, sections, subsections and other subdivisions of this Deposit
Agreement unless expressly provided otherwise. The words "this Deposit
Agreement", "herein", "hereof", "hereby", "hereunder", and words of similar
import refer to this Deposit Agreement as a whole as in effect between the
Company, the Depositary and the Holders and Beneficial Owners of ADSs and not to
any particular subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender shall be construed to include any other gender, and
words in the singular form shall be construed to include the plural and vice
versa unless the context otherwise requires. Titles to sections of this Deposit
Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement.
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IN WITNESS WHEREOF, CHARTERED SEMICONDUCTOR MANUFACTURING LTD
and CITIBANK, N.A. have duly executed this Deposit Agreement as of the day and
year first above set forth and all Holders and Beneficial Owners shall become
parties hereto upon acceptance by them of American Depositary Shares evidenced
by Receipts issued in accordance with the terms hereof, or upon acquisition of
any beneficial interest therein.
CHARTERED SEMICONDUCTOR
MANUFACTURING LTD
By: /s/ Chia Song Hwee
---------------------------------
Name: Chia Song Hwee
Title: Chief Financial Officer
CITIBANK, N.A.
By: /s/ Nancy Lissemore
---------------------------------
Name: Nancy Lissemore
Title: Vice President
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EXHIBIT A
[FORM OF RECEIPT]
Number CUSIP NUMBER:
American Depositary Shares (each
American Depositary Share
representing ten (10) ordinary
shares each of par value S$0.26)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
(Incorporated under the laws of the Republic of Singapore)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that _____________is the owner of _____________
American Depositary Shares (hereinafter "ADS"), representing deposited ordinary
shares, each of Par Value of S$0.26, including evidence of rights to receive
such ordinary shares (the "Shares") of Chartered Semiconductor Manufacturing
Ltd, a corporation incorporated under the laws of the Republic of Singapore (the
"Company"). As of the date of the Deposit Agreement (as hereinafter defined),
each ADS represents ten (10) Shares
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deposited under the Deposit Agreement with the Custodian, which at the date of
execution of the Deposit Agreement is Citibank Nominees Singapore Pte Ltd (the
"Custodian"). The ratio of American Depositary Shares to Shares is subject to
amendment as provided in Article IV of the Deposit Agreement. The Depositary's
Principal Office is located at 111 Wall Street, New York, New York 10043, U.S.A.
(1) The Deposit Agreement. This American Depositary Receipt is one of
an issue of American Depositary Receipts ("Receipts"), all issued and to be
issued upon the terms and conditions set forth in the Deposit Agreement, dated
as of November 4, 1999 (as amended from time to time, the "Deposit Agreement"),
by and among the Company, the Depositary, and all Holders and Beneficial Owners
from time to time of American Depositary Shares ("ADSs") evidenced by Receipts
issued thereunder, each of whom by accepting an ADS (or an interest therein)
agrees to become a party thereto and becomes bound by all the terms and
conditions thereof. The Deposit Agreement sets forth the rights and obligations
of Holders and Beneficial Owners of Receipts and the rights and duties of the
Depositary in respect of the Shares deposited thereunder and any and all other
securities, property and cash from time to time received in respect of such
Shares and held thereunder (such Shares, securities, property and cash are
herein called "Deposited Securities"). Copies of the Deposit Agreement are on
file at the Principal Office of the Depositary and with the Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and the Memorandum and
Articles of Association of the Company (as in effect on the date of the signing
of the Deposit Agreement) and are qualified by and subject to the detailed
provisions of the Deposit Agreement and the Memorandum and Articles of
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Association, to which reference is hereby made. All capitalized terms used
herein which are not otherwise defined herein shall have the meanings ascribed
thereto in the Deposit Agreement. The Depositary makes no representation or
warranty as to the validity or worth of the Deposited Securities. The Depositary
has made arrangements for the acceptance of the ADSs into DTC. Each Beneficial
Owner of ADSs held through DTC must rely on the procedures of DTC and the DTC
Participants to exercise and be entitled to any rights attributable to such
ADSs.
(2) Surrender of Receipts and Withdrawal of Deposited Securities.
The Holder of this Receipt (and of the ADSs evidenced hereby) shall be
entitled to Delivery (at the Custodian's designated office) of the Deposited
Securities at the time represented by the ADS(s) evidenced hereby upon
satisfaction of each of the following conditions: (i) the Holder (or a duly
authorized attorney of the Holder) has duly Delivered to the Depositary at its
Principal Office the ADSs evidenced hereby (and, if applicable, this Receipt)
for the purpose of withdrawal of the Deposited Securities represented thereby,
(ii) if so required by the Depositary, this Receipt has been properly endorsed
in blank or is accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice),
(iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered to the Depositary a written order directing the Depositary to cause
the Deposited Securities being withdrawn to be Delivered to or upon the written
order of the person(s) or entity(ies) designated in such order, and (iv) all
applicable fees and charges of, and expenses incurred by, the Depositary and all
applicable taxes and governmental charges (as are set forth in Section 5.9 and
Exhibit B of the Deposit Agreement) have been paid, subject, however, in each
case, to the terms and conditions of this Receipt, of the Deposit Agreement, of
the Company's Memorandum and Articles of Association and of any applicable laws
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and the rules of the CDP, and to any provisions of or governing the Deposited
Securities, in each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
Receipt evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so cancelled together with any certificate or
other document of or relating to title for the Deposited Securities, or evidence
of the electronic transfer thereof (if available), as the case may be, to or
upon the written order of the person(s) or entity(ies) designated in the order
delivered to the Depositary for such purpose, subject however, in each case, to
the terms and conditions of the Deposit Agreement, of this Receipt, of the
Memorandum and Articles of Association of the Company, of applicable laws and of
the rules of the CDP, and to the terms and conditions of or governing the
Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less
than one Share. In the case of surrender of ADSs representing other than a whole
number of Shares, the Depositary shall cause ownership of the appropriate whole
number of Shares to be Delivered in accordance with the terms hereof, and shall,
at the discretion of the Depositary, either (i) return to the person or entity
surrendering such ADSs the number of ADSs representing any remaining fractional
Share, or (ii) sell or cause to be sold the fractional Shares represented by the
ADSs so surrendered and remit the proceeds of such sale (net of (a) applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes
withheld) to the person or entity surrendering the ADSs. Notwithstanding
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anything else contained in this Receipt or the Deposit Agreement, the Depositary
may make delivery at the Principal Office of (i) any cash dividends or cash
distributions, or (ii) any proceeds from the sale of any distributions of stock
or rights, which may at the time be held by the Depositary in respect of the
Deposited Securities represented by the ADSs evidenced by this Receipt. At the
request, risk and expense of any Holder surrendering ADSs represented by this
Receipt, and for the account of such Holder, the Depositary shall direct the
Custodian to forward (to the extent permitted by law) any cash or other property
(other than securities) held by the Custodian in respect of the Deposited
Securities represented by such ADSs to the Depositary for delivery at the
Principal Office of the Depositary. Such direction shall be given by letter or,
at the request, risk and expense of such Holder, by cable, telex or facsimile
transmission.
(3) Transfer, Combination and Split-Up of Receipts. (a) Transfer. The
Registrar shall, without unreasonable delay, register the transfer of this
Receipt (and of the ADSs represented thereby) on the books maintained for such
purpose and the Depositary shall cancel this Receipt and execute new Receipts
evidencing the same aggregate number of ADSs as those evidenced by this Receipt
when cancelled, shall cause the Registrar to countersign such new Receipts, and
shall Deliver such new Receipts to or upon the order of the person or entity
entitled thereto, if each of the following conditions has been satisfied: (i)
this Receipt has been duly Delivered by the Holder (or by a duly authorized
attorney of the Holder) to the Depositary at its Principal Office for the
purpose of effecting a transfer thereof, (ii) this Receipt has been properly
endorsed or is accompanied by proper instruments of transfer (including
signature guarantees in accordance with standard securities industry practice),
(iii) this Receipt has been duly stamped (if required by the laws of the State
of New York or of the United States), and (iv) all applicable fees and charges
of, and expenses incurred
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by, the Depositary and all applicable taxes and governmental charges (as are set
forth in Section 5.9 and Exhibit B to the Deposit Agreement) have been paid, in
each case, however, subject to the terms and conditions of this Receipt, of the
Deposit Agreement and of applicable law, in each case as in effect at the time
thereof.
(b) Combination and Split-Up. The Registrar shall, without unreasonable
delay, register the split-up or combination of this Receipt (and of the ADSs
represented hereby) on the books maintained for such purpose and the Depositary
shall cancel this Receipt and execute new Receipts for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs evidenced by
this Receipt (when cancelled), shall cause the Registrar to countersign such new
Receipts, and shall Deliver such new Receipts to or upon the order of the Holder
thereof, if each of the following conditions has been satisfied: (i) this
Receipt has been duly Delivered by the Holder (or by a duly authorized attorney
of the Holder) to the Depositary at its Principal Office for the purpose of
effecting a split-up or combination hereof, and (ii) all applicable fees and
charges of, and expenses incurred by, the Depositary and all applicable taxes
and governmental charges (as are set forth in Section 5.9 and Exhibit B to the
Deposit Agreement) have been paid, subject, however, in each case, to the terms
and conditions of this Receipt, of the Deposit Agreement and of applicable law,
in each case, as in effect at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary or the Custodian may require (i) payment from the
depositor of Shares or presenter of ADSs or of a Receipt of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock transfer or
registration fee with respect
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thereto (including any such tax, charge or fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in the Deposit Agreement and in this Receipt, (ii) the
production of proof satisfactory to it as to the identity and genuineness of any
signature or any other matters and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of Receipts and
ADSs or to the withdrawal of Deposited Securities and (B) such reasonable
regulations of the Depositary or the Company consistent with the Deposit
Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the delivery of ADSs against
the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of outstanding Receipts generally may be suspended, during any
period when the transfer books of the Company, Depositary, a Registrar or the
Share Registrar are closed or if any such action is deemed necessary or
advisable by the Depositary or the Company, in good faith, at any time or from
time to time because of any requirement of law, any government or governmental
body or commission or any securities exchange upon which the Receipts or Shares
are listed, or under any provision of the Deposit Agreement or provisions of, or
governing, the Deposited Securities or any meeting of shareholders of the
Company or for any other reason, subject in all cases to Article (24) hereof.
Notwithstanding any provision of the Deposit Agreement or this Receipt to the
contrary, Holders are entitled to surrender outstanding ADSs to withdraw the
Deposited Securities at any time subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, (iii) compliance
with any
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U.S. or foreign laws or governmental regulations relating to the Receipts or to
the withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Section I.A.(l) of the General Instructions to Form
F-6 (as such General Instructions may be amended from time to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to Singapore law, the rules and requirements of the Stock
Exchange of Singapore Limited, and of any stock exchange on which Shares or ADSs
are or will be registered, traded or listed, the rules and requirements of the
CDP or any other clearing system through which transactions in the Shares may be
settled or the Memorandum and Articles of Association of the Company, which are
made to provide information as to the capacity in which such Holder or
Beneficial Owner owns ADSs (and Shares, as the case may be) and regarding the
identity of any other persons then or previously interested in such ADSs and the
nature of such interest and various other matters, whether or not they are
Holders and/or Beneficial Owners at the time of such request. The Depositary
agrees to use reasonable efforts to forward, upon the request of the Company,
any such requests to the Holders and to forward to the Company any such
responses to such requests received by the Depositary.
(6) Ownership Restrictions. The Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
under applicable law or the Memorandum and Articles of Association of the
Company. The Company may also restrict, in such manner as it deems appropriate,
transfers of ADSs where such transfer may result in the total number of Shares
represented by the ADSs owned by a single Holder or Beneficial Owner to exceed
any
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such limits. The Company may, in its sole discretion but subject to applicable
law, instruct the Depositary to take action with respect to the ownership
interest of any Holder or Beneficial Owner in excess of the limits set forth in
the preceding sentence, including but not limited to the imposition of
restrictions on the transfer of ADSs, the removal or limitation of voting rights
or a mandatory sale or disposition on behalf of a Holder or Beneficial Owner of
the Shares represented by the ADSs held by such Holder or Beneficial Owner in
excess of such limitations, if and to the extent such disposition is permitted
by applicable law and the Memorandum and Articles of Association of the Company.
(7) Liability of Holder for Taxes, Duties and Other Charges. If any tax
or other governmental charge shall become payable with respect to any Receipt or
any Deposited Securities or ADSs, such tax, or other governmental charge shall
be payable by the Holders and Beneficial Owners to the Depositary. The Company,
the Custodian and/or Depositary may withhold or deduct from any distributions
made in respect of Deposited Securities and may sell for the account of the
Holder and/or Beneficial Owner any or all of the Deposited Securities and apply
such distributions and sale proceeds in payment of such taxes (including
applicable interest and penalties) or charges, the Holder and the Beneficial
Owner hereof remaining liable for any deficiency. The Custodian may refuse the
deposit of Shares and the Depositary may refuse to issue ADSs, to deliver
Receipts, register the transfer, split-up or combination of ADRs and (subject to
Article (24) hereof) the withdrawal of Deposited Securities until payment in
full of such tax, charge, penalty or interest is received. Every Holder and
Beneficial Owner agrees to indemnify the Depositary, the Company, the Custodian
and any of their agents, employees and Affiliates for, and hold each of then
harmless
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from, any claims with respect to taxes (including applicable interest and
penalties thereon) arising from any tax benefit obtained for such Holder and/or
Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person or entity
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares (and the certificates therefor) are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person or entity, (ii) all preemptive (and similar) rights, if any, with
respect to such Shares, have been validly waived or exercised, (iii) the person
or entity making such deposit is duly authorized so to do, (iv) the Shares
presented for deposit are free and clear of any lien, encumbrance, security
interest, charge, mortgage or adverse claim and are not, except with respect to
Restricted Securities being deposited in accordance with Section 2.12 therein,
and the ADSs issuable upon such deposit will not be, except as contemplated in
Section 2.12 therein, Restricted Securities; and (v) the Shares presented for
deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If any such representations or warranties are false in
any way, the Company and Depositary shall be authorized, at the cost and expense
of the person or entity depositing Shares, to take any and all actions necessary
to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person or
entity presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and
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Deposited Securities, compliance with applicable laws and the terms of the
Deposit Agreement and the provisions of, or governing, the Deposited Securities,
to execute such certifications and to make such representations and warranties
and to provide such other information or documentation (or, in the case of
Shares in registered form presented for deposit, such information relating to
the registration on the books of the Company or of the appointed agent of the
Company for registration and transfer of Shares) as the Depositary or the
Custodian may deem reasonably necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its
obligations under the Deposit Agreement. Subject to Article (24) hereof and the
terms of the Deposit Agreement, the Depositary and the Registrar, as applicable,
may, and at the reasonable request of the Company, shall, withhold the delivery
or registration of transfer of any Receipt or the distribution or sale of any
dividend or other distribution of rights or of the proceeds thereof or the
delivery of any Deposited Securities until such proof or other information is
filed or such certificates are executed, or such representations and warranties
made or such information and documentation are provided, in each case to the
Depositary's, the Registrar's and the Company's reasonable satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following
fees for the services performed under the terms of the Deposit Agreement:
(i) to any person or entity to whom ADSs are issued upon the deposit
of Shares, a fee not in excess of U.S. $ 5.00 per 100 ADSs (or
portion thereof) so issued under the terms of the Deposit
Agreement (excluding issuances pursuant to paragraph (iii) and
(iv) below);
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(ii) to any person or entity surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in excess of U.S.
$5.00 per 100 ADSs (or portion thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S. $5.00 per 100
ADSs (or portion thereof) held for the distribution of stock or
other free distributions;
(iv) to any Holder of ADRs, a fee not in excess of U.S. $ 2.00 per
100 ADSs (or portion thereof) held for the distribution of cash
proceeds (i.e. upon the sale of rights and other entitlements);
and
(v) to any Holder of ADRs, a fee not in excess of U.S. $ 5.00 per
100 ADSs (or portion thereof) issued upon the exercise of
rights.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for
the registration of Shares or other Deposited Securities on the
share register and applicable to transfers of Shares or other
Deposited Securities to or from the name of the Custodian, the
Depositary or any nominees upon the making of deposits and
withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person or entity depositing or
withdrawing Shares or Holders and Beneficial Owners of ADSs;
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<PAGE> 88
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (22) of this Receipt. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon request. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) shall be
transferable on the same terms as a certificated security under the laws of the
State of New York, provided that the Receipt has been properly endorsed or is
accompanied by proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary may deem and treat the Holder of this Receipt (that is,
the person or entity in whose name this Receipt is registered on the books of
the Depositary) as the absolute owner thereof for all purposes. Neither the
Depositary nor the Company shall have any obligation nor be subject to any
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<PAGE> 89
liability under the Deposit Agreement or this Receipt to any holder of this
Receipt or any Beneficial Owner unless such holder is the Holder of this Receipt
registered on the books of the Depositary or, in the case of a Beneficial Owner,
such Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
(12) Validity of Receipt. This Receipt (and the American Depositary
Shares represented hereby) shall not be entitled to any benefits under the
Deposit Agreement or be valid or enforceable for any purpose against the
Depositary or the Company unless this Receipt has been (i) dated, (ii) signed by
the manual or facsimile signature of a duly authorized signatory of the
Depositary, (iii) countersigned by the manual or facsimile signature of a duly
authorized signatory of the Registrar, and (iv) registered in the books
maintained by the Registrar for the registration of issuances and transfers of
Receipts. Receipts bearing the facsimile signature of a duly-authorized
signatory of the Depositary or the Registrar, who at the time of signature was a
duly authorized signatory of the Depositary or the Registrar, as the case may
be, shall bind the Depositary, notwithstanding the fact that such signatory has
ceased to be so authorized prior to the delivery of such Receipt by the
Depositary.
(13) Available Information; Reports; Inspection of Transfer Books. The
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at public reference facilities maintained
by the Commission located at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the Commission's New York City office located at
Seven World Trade Center, 13th Floor, New York, New York 10048. The Depositary
shall make available for inspection by Holders at its Principal Office any
reports and communications, including any
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<PAGE> 90
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
the Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts,
at any time or from time to time, when deemed reasonably necessary or advisable
by it in good faith in connection with the performance of its duties hereunder,
or at the reasonable written request of the Company subject, in all cases, to
Article (24) hereof.
Dated: CITIBANK, N.A.,
as Depositary
Countersigned
By: By:
--------------------------------- --------------------------------
Authorized Representative Vice President
The address of the Principal Office of the Depositary is 111 Wall
Street, New York, New York 10043, U.S.A.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Shares, rights securities or other entitlements
under the Deposit Agreement, the Depositary will, if at the time of receipt
thereof any amounts received in a Foreign Currency can, in the reasonable
judgment of the Depositary (upon the terms of the Deposit Agreement), be
converted on a practicable basis into Dollars transferable to the United States,
promptly convert or cause to be converted such dividend, distribution or
proceeds into Dollars (upon the terms of the Deposit Agreement) and will
distribute promptly the amount thus received (net of (a) applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to
the Holders entitled thereto as of the ADS Record Date in proportion to the
number of ADSs held as of the ADS Record Date. The Depositary shall distribute
only such amount, however, as can be distributed without attributing to any
Holder a fraction of one cent, and any balance not so distributed shall be held
by the Depositary (without liability for interest thereon) and shall be added to
and become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, duties or other governmental charges, the amount distributed
to Holders of the ADSs representing such Deposited Securities shall be reduced
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<PAGE> 92
accordingly. Such withheld amounts shall be forwarded by the Company to the
relevant governmental authority.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall cause such Shares to be
deposited with the Custodian and registered, as the case may be, in the name of
the Depositary, the Custodian or their nominees. Upon receipt of confirmation of
such deposit from the Custodian, the Depositary shall, subject to and in
accordance with the Deposit Agreement, establish the ADS Record Date and either
(i) distribute to the Holders as of the ADS Record Date in proportion to the
number of ADSs held as of the ADS Record Date, additional ADSs, which represent
in aggregate the number of Shares received as such dividend, or free
distribution, subject to the terms of the Deposit Agreement (including, without
limitation, (a) the applicable fees and charges of, and expenses incurred by,
the Depositary and (b) taxes), or (ii) if additional ADSs are not so
distributed, each ADS issued and outstanding after the ADS Record Date shall, to
the extent permissible by law, thenceforth also represent rights and interests
in the additional integral number of Shares distributed upon the Deposited
Securities represented thereby (net (a) of the applicable fees and charges of,
and the expenses incurred by, the Depositary, and (b) taxes). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares or
ADSs, as the case may be, represented by the aggregate of such fractions and
distribute the net proceeds upon the terms set forth in the Deposit Agreement.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company, in the
fulfillment of its obligations under the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities
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Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable and the Depositary shall
distribute the net proceeds of any such sale (after deduction of (a) taxes and
fees and (b) charges of, and expenses incurred by, the Depositary) to Holders
entitled thereto upon the terms of the Deposit Agreement. The Depositary shall
hold and/or distribute any unsold balance of such property in accordance with
the provisions of the Deposit Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms described
in the Deposit Agreement, the Company and the Depositary shall determine whether
such distribution is lawful and reasonably practicable. If so, the Depositary
shall, to the extent permitted by law and subject to the terms and conditions of
the Deposit Agreement, promptly distribute either (x) cash as in the case of a
cash distribution or (y) additional ADSs representing such additional Shares as
in the case of a distribution of Shares. In either case, the Depositary shall,
subject to the terms and conditions of the Deposit Agreement, establish an ADS
Record Date according to Article (16) and establish procedures to enable the
Holder hereof to elect to receive the proposed distribution in cash or in
additional ADSs. If a Holder elects to receive the distribution in cash, the
dividend shall be distributed as in the case of a distribution in cash. If the
Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be distributed as in the case of a distribution in Shares.
Nothing herein or in the Deposit Agreement shall obligate the Depositary to make
available to the Holder hereof a method to receive the elective distribution in
Shares (rather than ADSs). There can be no assurance that the
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<PAGE> 94
Holder hereof will be given the opportunity to receive elective distributions on
the same terms and conditions as the holders of Shares.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares (or any rights of any
other nature) to be made available to Holders of ADSs, the Depositary upon
consultation with the Company, shall determine, whether it is lawful and
reasonably practicable to make such rights available to the Holders. The
Depositary shall promptly make such rights available to any Holders only if (i)
the Company shall have requested that such rights be made available to Holders,
(ii) the Depositary shall have received the documentation contemplated in the
Deposit Agreement, and (iii) the Depositary shall have determined that such
distribution of rights is reasonably practicable. If such conditions are not
satisfied, the Depositary shall sell the rights as described below. In the event
all conditions set forth above are satisfied, the Depositary shall establish an
ADS Record Date (upon the terms described in the Deposit Agreement) and
establish procedures to distribute rights to purchase additional ADSs (by means
of warrants or otherwise) and to enable the Holders to exercise the rights (upon
payment of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes). Nothing herein or in the Deposit Agreement shall
obligate the Depositary to make available to the Holders a method to exercise
rights to subscribe for Shares (rather than ADSs).
If (i) the Company does not request the Depositary to make the rights
available to Holders or if the Company requests that the rights not be made
available to Holders, (ii) the Depositary fails to receive the documentation
required by the Deposit Agreement or determines it is not reasonably practicable
to make the rights available to Holders, or (iii) any rights made available are
not exercised and appear to be about to lapse, the Depositary upon consultation
with the Company shall
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<PAGE> 95
determine whether it is lawful and reasonably practicable to sell such rights,
in a riskless principal capacity, at such place and upon such terms (including
public and private sale) as it may deem proper. The Depositary shall, upon such
sale, convert and distribute proceeds of such sale (net of applicable fees and
charges of, and expenses incurred by, the Depositary and taxes) upon the terms
hereof and of the Deposit Agreement.
If the Depositary is unable to make any rights available to Holders or
to arrange for the sale of the rights upon the terms described above, the
Depositary shall allow such rights to lapse. Neither the Depositary nor the
Company shall be responsible for (i) any failure to determine that it may be
lawful or feasible to make such rights available to Holders in general or any
Holders in particular or (ii) any foreign exchange exposure or loss incurred in
connection with such sale or exercise. The Depositary shall not be responsible
for the content of any materials forwarded to the ADR Holders on behalf of the
Company in connection with the rights distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders unless and until a registration statement
under the Securities Act (or other applicable law) covering such offering is in
effect. In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of ADSs representing such Deposited
Securities shall be reduced accordingly. In the event that the Depositary
determines that any distribution in property (including
20
<PAGE> 96
Shares and rights to subscribe therefor) is subject to any tax or other
governmental charges which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and practicable to
pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein or in the Deposit Agreement shall obligate the Company to file any
registration statement in respect of any rights or Shares or other securities to
be acquired upon the exercise of such rights.
Upon receipt of a notice indicating that the Company wishes property
other than cash, Shares or rights to purchase additional Shares, to be made to
Holders of ADSs, the Depositary shall determine whether such distribution to
Holders is lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have reasonably determined that such distribution is reasonably
practicable. Upon satisfaction of such conditions, the Depositary shall
distribute as promptly as practicable, the property so received to the Holders
of record, as of the ADS Record Date, in proportion to the number of ADSs held
by them respectively and in such manner as the Depositary may deem reasonably
practicable for accomplishing such distribution (i) upon receipt of payment or
net of the applicable fees and charges of, and expenses incurred by, the
Depositary, and (ii) net of any taxes withheld. The Depositary may dispose of
all or a portion of the
21
<PAGE> 97
property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem reasonably
practicable or necessary to satisfy any taxes (including applicable interest and
penalties) or other governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem reasonably proper and shall as
promptly as practicable (i) cause the proceeds of such sale, if any, to be
converted into Dollars and (ii) distribute the proceeds of such conversion
received by the Depositary (net of (a) applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) to the Holders upon the
terms hereof and of the Deposit Agreement. If the Depositary is unable to sell
such property, the Depositary, upon consultation with the Company, may dispose
of such property in any way it deems reasonably practicable under the
circumstances.
(15) Redemption. Upon timely receipt of notice from the Company that it
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel (if requested by the
Depositary), and upon determining that such proposed redemption is practicable,
the Depositary shall (to the extent practicable) mail to each Holder a notice
setting forth the Company's intention to exercise the redemption rights and any
other particulars set forth in the Company's notice to the Depositary. Upon
receipt of confirmation that the redemption has taken place and that funds
representing the redemption price have been received, the Depositary shall
convert, transfer, distribute the proceeds (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary, and (b) taxes), retire
ADSs and cancel ADRs upon delivery of such ADSs by Holders thereof upon the
terms of the Deposit Agreement. If less than all
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<PAGE> 98
outstanding Deposited Securities are redeemed, the ADSs to be retired will be
selected by lot or on a pro rata basis, as may be determined by the Depositary.
The redemption price per ADS shall be the dollar equivalent of per share amount
received by the Depositary upon the redemption of the Deposited Securities
represented by American Depositary Shares (subject to the terms of the Deposit
Agreement and the applicable fees and charges of, and expenses incurred by, the
Depositary, and taxes) multiplied by the number of Units or Deposited Securities
represented by each ADS redeemed.
(16) Fixing of Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, or any other matter, the Depositary
shall fix a record date ("ADS Record Date") for the determination of the Holders
of Receipts who shall be entitled to receive such distribution, to give
instructions for the exercise of voting rights at any such meeting, or to give
or withhold such consent, or to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Shares represented by each ADS. Subject to applicable law and
the terms and conditions of this Receipt and the Deposit Agreement, only the
Holders of Receipts at the close of business in New York on such ADS Record Date
shall be entitled to receive such distributions, to give such instructions, to
receive such notice or solicitation, or otherwise take action.
23
<PAGE> 99
(17) Voting of Deposited Securities. As soon as practicable after
receipt of notice of any meeting at which the holders of Shares are entitled to
vote, or of solicitation of consents or proxies from holders of Shares or other
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of such consent or proxy. The Depositary shall (if
requested in writing in a timely manner by the Company and at the Company's
expense) as soon as practicable mail to Holders: (a) such notice of meeting or
solicitation of consent or proxies, (b) a statement that the Holders as of the
ADS Record Date will be entitled, subject to any applicable law, the Company's
Memorandum and Articles of Association and the provisions of or governing
Deposited Securities (which provisions, if any, shall be summarized in pertinent
part by the Company), to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the Shares or other Deposited Securities
represented by such Holder's ADS and (c) a brief statement as to the manner in
which such instructions may be given. Upon the timely receipt of written
instructions of a Holder of ADSs on the ADS Record Date, the Depositary shall
endeavor, insofar as reasonably practicable and permitted under applicable law
and the provisions of the Memorandum and Articles of Association of the Company
and the provisions of the Deposited Securities, to vote or cause the Custodian
to vote the Shares and/or other Deposited Securities represented by ADSs held by
such Holder in accordance with such instructions.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise the Shares or other
Deposited Securities represented by ADSs except pursuant to and in accordance
with such written instructions from Holders. If voting instructions are received
by the Depositary from
24
<PAGE> 100
any Holder on or before the date established by the Depositary for the receipt
of such instructions, which are signed but without further indication as to
specific instructions, the Depositary will deem such Holder to have instructed
the Depositary to vote in favor of the items set forth in such instructions.
Shares or other Deposited Securities represented by ADSs for which no specific
voting instructions are received by the Depositary from the Holder shall not be
voted. There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
(18) Changes Affecting Deposited Securities. Upon any change in nominal
or par value, split-up, stock split (either forward or reverse), cancellation,
consolidation or any other reclassification of Deposited Securities, or upon
any recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which it is a party, any securities which shall be
received by the Depositary or the Custodian in exchange for, or in conversion of
or replacement of or otherwise in respect of, such Deposited Securities shall,
to the extent permitted by law, be treated as new Deposited Securities under the
Deposit Agreement, and the Receipts shall, subject to the provisions of the
Deposit Agreement and applicable law, evidence ADSs representing the right to
receive such securities. The Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional Receipts as in the case of a stock
dividend or stock split, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts as in the case of a reverse stock split, and in
either case, with any necessary modifications to the form of Receipt contained
in Exhibit A to the Deposit Agreement,
25
<PAGE> 101
to give effect to such corporate change. Notwithstanding the foregoing, in the
event that any security so received may not be lawfully distributed to some or
all Holders, the Depositary may, with the Company's approval, and shall if the
Company requests, subject to receipt of satisfactory legal documentation
contemplated in the Deposit Agreement, sell such securities at public or private
sale, at such place or places and upon such terms as it may deem reasonably
proper and may allocate the net proceeds of such sales (net of (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) for the
account of the Holders otherwise entitled to such securities and distribute the
net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to the Deposit Agreement. Neither the
Depositary nor the Company shall be responsible for (i) any failure to determine
that it may be lawful or feasible to make such securities available to Holders
in general or any Holder in particular, (ii) any foreign exchange exposure or
loss incurred in connection with such sale, or (iii) any liability to the
purchaser of such securities.
(19) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this
Receipt, by reason of any provision of any present or future law or regulation
of the United States, Singapore or any other country, or of any other
governmental authority or regulatory authority or stock exchange, or by reason
of any provision, present or future of the Memorandum and Articles of
Association of the Company or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control (including, without limitation, nationalization, expropriation,
26
<PAGE> 102
currency restrictions, work stoppage, strikes, civil unrest, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement or
in the Memorandum and Articles of Association of the Company or provisions of or
governing Deposited Securities, (iii) for any action or inaction in reliance
upon the advice of or information from legal counsel, accountants, any person or
entity presenting Shares for deposit, any Holder, any Beneficial Owner or
authorized representative thereof, or any other person or entity believed by it
in good faith to be competent to give such advice or information, (iv) for any
inability by a Holder or Beneficial Owner to benefit from any distribution,
offering, right or other benefit which is made available to holders of Deposited
Securities but is not, under the terms of the Deposit Agreement, made available
to Holders of ADSs or (v) for any consequential or punitive damages for any
breach of the terms of the Deposit Agreement.
The Depositary, its controlling persons, its agents, any Custodian and
the Company, its controlling persons and its agents may rely and shall be
protected in acting upon any written notice, request or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties. No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement.
(20) Standard of Care. The Company and its agents assume no obligation
and shall not be subject to any liability under the Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons, except that the
Company and its agents agree to perform their obligations specifically set forth
in the Deposit Agreement without negligence or bad faith. The Depositary and its
agents assume no obligation and shall not be subject to any liability under the
Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons, except that the Depositary and its
27
<PAGE> 103
agents agree to perform their obligations specifically set forth in the Deposit
Agreement without negligence or bad faith. The Depositary and its agents shall
not be liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast or the effect
of any vote, provided that any such action or omission is in good faith and in
accordance with the terms of the Deposit Agreement. Neither the Depositary nor,
to the extent permitted by law, the Company, shall incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for any investment risk associated with acquiring an interest in
the Deposited Securities, for the validity or worth of the Deposited Securities
or for any tax consequences that may result from the ownership of ADSs, Shares
or Deposited Securities, for the credit-worthiness of any third party, or for
allowing any rights to lapse upon the terms of the Deposit Agreement. The
Depositary shall not incur liability for the content of any information
submitted to it by the Company for distribution to the Holders or for any
inaccuracy of any translation thereof or for the failure or timeliness of any
notice from the Company.
(21) Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary under
the Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company by written
notice of such removal which notice shall be effective on the earlier of (i) the
60th day after delivery thereof to the Depositary, or (ii) upon the appointment
of a successor depositary and its acceptance of such appointment as provided in
the Deposit Agreement.
28
<PAGE> 104
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor. The predecessor
depositary, upon payment of all sums due it and on the written request of the
Company, shall (i) execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder (other than as
contemplated in the Deposit Agreement), (ii) duly assign, transfer and deliver
all right, title and interest to the Deposited Securities to such successor, and
(iii) deliver to such successor a list of the Holders of all outstanding
Receipts and such other information relating to Receipts and Holders thereof as
the successor may reasonably request. Any such successor depositary shall
promptly mail notice of its appointment to such Holders. Any corporation into or
with which the Depositary may be merged or consolidated shall be the successor
of the Depositary without the execution or filing of any document or any further
act.
(22) Amendment/Supplement. This Receipt and any provisions of the
Deposit Agreement may at any time and from time to time be amended or
supplemented by written agreement between the Company and the Depositary in any
respect which they may deem necessary or desirable without the prior written
consent of the Holders or Beneficial Owners. Any amendment or supplement which
shall impose or increase any fees or charges (other than the charges in
connection with foreign exchange control regulations, and taxes and other
governmental charges, delivery and other such expenses), or which shall
otherwise prejudice any substantial existing right of Holders or Beneficial
29
<PAGE> 105
Owners, shall not, however, become effective as to outstanding Receipts until
the expiration of 30 days after notice of such amendment or supplement shall
have been given to the Holders of outstanding Receipts. The parties hereto agree
that any amendments or supplements which (i) are reasonably necessary (as agreed
by the Company and the Depositary) in order for (a) the ADSs to be registered on
Form F-6 under the Securities Act or (b) the ADSs to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
materially prejudice any substantial rights of Holders or Beneficial Owners.
Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes effective shall be deemed, by continuing to hold such ADS(s), to consent
and agree to such amendment or supplement and to be bound by the Deposit
Agreement as amended or supplemented thereby. In no event shall any amendment or
supplement impair the right of the Holder to surrender such Receipt and receive
therefor the Deposited Securities represented thereby, except in order to comply
with mandatory provisions of applicable law. Notwithstanding the foregoing, if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and the Receipt at any time in accordance with such changed laws,
rules or regulations. Such amendment or supplement to the Deposit Agreement in
such circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance with such laws, or rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders
30
<PAGE> 106
of all Receipts then outstanding at least 30 days prior to the date fixed in
such notice for such termination. If 60 days shall have expired after (i) the
Depositary shall have delivered to the Company a written notice of its election
to resign, or (ii) the Company shall have delivered to the Depositary a written
notice of the removal of the Depositary, and in either case a successor
depositary shall not have been appointed and accepted its appointment as
provided herein and in the Deposit Agreement, the Depositary may terminate the
Deposit Agreement by mailing notice of such termination to the Holders of all
Receipts then outstanding at least 30 days prior to the date fixed for such
termination. On and after the date of termination of the Deposit Agreement, the
Holder will, upon surrender of such Holders' Receipt(s) at the Principal Office
of the Depositary, upon the payment of the charges of the Depositary for the
surrender of ADSs referred to in Article (2) hereof and in the Deposit Agreement
and subject to the conditions and restrictions therein set forth, and upon
payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by such Receipt. If any Receipts shall remain outstanding after the
date of termination of the Deposit Agreement, the Registrar thereafter shall
discontinue the registration of transfers of Receipts, and the Depositary shall
suspend the distribution of dividends to the Holders thereof, and shall not give
any further notices or perform any further acts under the Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights as provided
in the Deposit Agreement, and shall continue to deliver Deposited Securities,
subject to the conditions and restrictions set forth in the Deposit Agreement,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, or charging, as the
case may
31
<PAGE> 107
be, in each case the charges of the Depositary for the surrender of a Receipt,
any expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from the
date of termination of the Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders of Receipts whose Receipts have not theretofore
been surrendered. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement with respect to the Receipts
and the Shares, the Deposited Securities and the ADSs, except to account for
such net proceeds and other cash (after deducting, or charging, as the case may
be, in each case the charges of the Depositary for the surrender of a Receipt,
any expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations under the Deposit Agreement
except as set forth in the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any
provisions in this Receipt or the Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Section I.A.(1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this Article (25), the Depositary, its
Affiliates and their agents, on their own behalf,
32
<PAGE> 108
may own and deal in any class of securities of the Company and its Affiliates
and in ADSs. The Depositary may issue ADSs against evidence of rights to receive
Shares from the Company, any agent of the Company or any custodian, registrar,
transfer agent, clearing agency or other entity involved in ownership or
transaction records in respect of the Shares. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of Shares. In its
capacity as Depositary, the Depositary shall not lend Shares or ADSs; provided,
however, that the Depositary may (i) issue ADSs prior to the receipt of Shares
pursuant to Section 2.3 of the Deposit Agreement and (ii) Deliver Shares prior
to the receipt of ADSs for withdrawal of Deposited Securities pursuant to
Section 2.7 of the Deposit Agreement, including ADSs which were issued under (i)
above but for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) accompanied by or subject to a written
agreement whereby the person or entity (the "Applicant") to whom ADSs or Shares
are to be delivered (w) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (x) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
U.S. government securities or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice and (d) subject to such
33
<PAGE> 109
further indemnities and credit regulations as the Depositary deems reasonably
appropriate. The Depositary will normally limit the number of ADSs and Shares
involved in such Pre-Release Transactions at any one time to thirty percent
(30%) of the ADSs outstanding (without giving effect to ADSs outstanding under
(i) above), provided, however, that the Depositary reserves the right to change
or disregard such limit from time to time as it deems appropriate. The
Depositary may also set limits with respect to the number of ADSs and Shares
involved in Pre-Release Transactions with any one person on a case by case basis
as it deems appropriate. The Depositary may retain for its own account any
compensation received by it in conjunction with the foregoing. Collateral
provided pursuant to (b) above, but not earnings thereon, shall be held for the
benefit of the Holders (other than the Applicant).
34
<PAGE> 110
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
________________, the within Receipt and all rights thereunder, hereby
irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated:
Name:________________________________
By:
Title:
NOTICE: The signature of the Holder to
this assignment must correspond with the
name as written upon the face of the
within instrument in every particular,
without alteration or enlargement or any
change whatsoever.
If the endorsement be executed by an
attorney, executor, administrator,
trustee or guardian, the person
executing the endorsement must give
his/her full title in such capacity and
proper evidence of authority to act in
such capacity, if not on file with the
Depositary, must be forwarded with this
Receipt.
All endorsements or assignments of
Receipts must be guaranteed by a member
of a Medallion Signature Pro gram
approved by the Securities Transfer
Association, Inc.
SIGNATURE GUARANTEED
35
<PAGE> 111
LEGENDS
EACH RECEIPT ISSUED IN RESPECT OF PARTIAL ENTITLEMENT AMERICAN
DEPOSITARY SHARES SHALL BEAR THE FOLLOWING LEGEND ON THE FACE
OF THE RECEIPT: "THIS RECEIPT EVIDENCES AMERICAN DEPOSITARY
SHARES REPRESENTING "PARTIAL ENTITLEMENT" ORDINARY SHARES OF
CHARTERED SEMICONDUCTOR MANUFACTURING LTD AND AS SUCH DO NOT
ENTITLE THE HOLDERS THEREOF TO THE SAME PER-SHARE ENTITLEMENT
AS OTHER ORDINARY SHARES (WHICH ARE "FULL ENTITLEMENT"
ORDINARY SHARES) ISSUED AND OUTSTANDING AT SUCH TIME. THE
AMERICAN DEPOSITARY SHARES REPRESENTED BY THIS RECEIPT SHALL
ENTITLE HOLDERS TO DISTRIBUTIONS AND ENTITLEMENTS IDENTICAL TO
OTHER AMERICAN DEPOSITARY SHARES WHEN THE ORDINARY SHARES
REPRESENTED BY SUCH AMERICAN DEPOSITARY SHARES BECOME "FULL
ENTITLEMENT" ORDINARY SHARES."
EACH RESTRICTED ADR ISSUED IN RESPECT OF RESTRICTED SHARES
SHALL BEAR THE FOLLOWING LEGEND ON THE FACE OF THE RESTRICTED
ADR: "THIS CERTIFICATE REPRESENTS "RESTRICTED ADSS" ISSUED
UPON THE TERMS OF SECTION 2.12 OF THE DEPOSIT AGREEMENT (AS
HEREINAFTER DEFINED). THIS CERTIFICATE AND THE RESTRICTED ADSS
REPRESENTED HEREBY MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH
SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
UNLESS AN EXEMPTION FROM REGISTRATION UNDER SAID ACT IS
AVAILABLE FOR SUCH SALE OR TRANSFER."
36
<PAGE> 112
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. DEPOSITARY FEES
The Company, the Holders, the Beneficial Owners and the
persons depositing Shares or surrendering ADSs for cancellation agree to pay the
following fees of the Depositary:
<TABLE>
<CAPTION>
SERVICE RATE BY WHOM PAID
<S> <C> <C>
(1) Issuance of ADSs upon Up to $5.00 per 100 ADSs (or Person for whom deposits
deposit of Shares (excluding fraction thereof) issued. are made or party receiving
issuances contemplated by ADSs.
paragraphs (3) and (5) below).
(2) Delivery of Deposited Up to $5.00 per 100 ADSs (or Person surrendering ADSs
Securities, property and cash fraction thereof) surrendered. or making withdrawal.
against surrender of ADSs.
(3) Distribution of stock or Up to $5.00 per 100 ADSs (or Person to whom distribution
other free distributions. fraction thereof) held. is made.
(4) Distribution of cash Up to $2.00 per 100 ADSs (or Person to whom distribution
proceeds (i.e. upon sale of rights fraction thereof) held. is made.
and other entitlements).
(5) Distribution of ADSs Up to $5.00 per 100 ADSs (or Person to whom distribution
pursuant to exercise of rights. fraction thereof) issued. is made.
</TABLE>
II. CHARGES. Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and for the purpose of
withdrawing Deposited Securities shall be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
37
<PAGE> 113
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or any
nominees upon the making of deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses as
are expressly provided in the Deposit Agreement to be at the expense of
the person depositing Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion
of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
(vi) the fees and expenses incurred by the Depositary in connection with the
deliver of Deposited Securities.
38
<PAGE> 1
EXHIBIT 10.1
ST GROUP MANAGEMENT & SUPPORT SERVICES AGREEMENT
THIS AGREEMENT is made the 1st day of November 1999
BETWEEN:
(1) SINGAPORE TECHNOLOGIES PTE LTD, a company incorporated in Singapore and
having its registered office at 51 Cuppage Road, #09-01 StarHub Centre,
Singapore 229 469 ("STPL"); and
(2) CHARTERED SEMICONDUCTOR MANUFACTURING LTD, a company incorporated in
Singapore and having its registered office at 60 Woodlands Industrial
Park Street 2, Singapore 738 406 ("the Company").
WHEREAS :
(A) STPL is a majority shareholder of the Company, and the corporate
headquarters for the Singapore Technologies group of companies and
provides administrative and support services to its related companies
within and outside Singapore.
(B) STPL has invaluable experience in the fields of finance, treasury,
investment risk review, governmental relations, business development,
management information systems, human resources management and
development, legal and corporate secretarial matters and internal audit.
STPL is also able to offer the Company the benefits of a global network.
Further, the "Singapore Technologies" name, affiliation to STPL and
STPL's wide spectrum of industries provide the Company with operational
and financial leverages (such as improved credit rating, easier access
to funding and lower cost of borrowing) in its dealings with external
parties ("STPL Franchise").
(C) STPL and the Company acknowledge that the centralisation of support
staff in STPL enables them to share the cost of business services,
enhance communication and eliminate duplication of efforts.
1
<PAGE> 2
NOW IT IS HEREBY AGREED as follows:
1. CORPORATE SERVICES & SUPPORT
1.1 STPL shall maintain throughout the duration of this Agreement a staff of
personnel with acknowledged proficiency in their respective fields who
shall render the Services, as defined in Clause 1.2 below and according
to the headcounts allocated, to the Company. STPL shall also continue to
work on strengthening and improving its global network and reputation
for the benefit of the ST group of companies.
1.2 "Services" shall refer to services in the areas specified in the
Appendix attached.
1.3 In addition to the Services mentioned in Clause 1.1 above, the Company
may request STPL to render additional specific services relating to
specific projects, or require personnel from STPL to be seconded or
assigned to the Company or its subsidiaries for an agreed period of
time. In such events, the said additional services shall be invoiced on
a case by case basis at terms and conditions to be mutually agreed
between the parties.
2. CONSIDERATION
2.1 In consideration of the Services provided by STPL hereunder, the Company
agrees to pay ST such amount (the "Consideration") to be determined at
the beginning of each year in accordance with the Appendix. The method
and basis of determination of the Consideration shall be reviewed by the
parties every 3 years. STPL and the Company may upon mutual agreement,
delete any of the Services specified in the Appendix or add new Services
to the Appendix, in which event that Consideration shall be adjusted
accordingly by mutual agreement. Any variation shall be subject to the
written agreement of both parties.
2.2 The Company shall pay to STPL the Consideration in four equal advance
instalments upon presentation by STPL of its invoices at the beginning
of each financial quarter.
2.3 All payments by the Company to STPL shall be made in full in Singapore
Dollars within thirty (30) days of the date of invoice, without set-off
or deduction of taxes, duties, assessments or other charges of any kind
or description. The Company shall bear all goods and services tax
payable on the supply of the Services.
2
<PAGE> 3
3. TERM AND TERMINATION
3.1 This Agreement shall take effect from the date hereof and shall remain
valid until terminated pursuant to Clauses 3.2 and 3.3 below.
3.2 If the Company fails to effect payment of the Consideration in
accordance with Clause 2, and such default shall not be remedied within
fourteen (14) days after written notice of such default is given by STPL
to the Company, then at any time after the expiration of such period of
fourteen (14) days, STPL may give written notice to the Company of its
desire to terminate this Agreement, whereupon this Agreement shall
terminate on the date specified in such notice.
3.3 The parties agree that this Agreement shall terminate forthwith in the
event the Company ceases to be a subsidiary of STPL.
3.4 The termination of this Agreement howsoever caused shall be without
prejudice to any obligations, rights or remedy which have accrued prior
to such termination and shall not affect any provision of this Agreement
which is expressly or by implication provided to come into effect on or
continue in effect after such termination.
4. CONFIDENTIALITY
Except as authorised in writing by the respective party, each party
shall keep secret and shall not at any time, whether during or after
this Agreement, use for its own or any other person's advantage or
reveal to any person any of the trade secrets, secret or confidential
operations, processes or dealings, or any secret or confidential
information concerning the organisation, business or undertaking of the
other party or any of its subsidiaries or associated companies.
5. SEVERABILITY
If any provision in this Agreement at any time shall be deemed invalid,
illegal or unenforceable in any respect under Singapore law, such
invalidity, illegality or unenforceability shall not in any way affect
or impair any other provision of this Agreement and this Agreement shall
be construed as if such invalid or illegal or unenforceable provision
had been severed from the Agreement.
3
<PAGE> 4
6. GENERAL
6.1 This Agreement contains the entire agreement between the parties in
respect to the subject matter hereof and supersedes and cancels any and
all previous negotiations, offers, agreements (whether written or oral)
in respect thereto.
6.2 This Agreement or any rights and liabilities hereunder may not be
assigned or transferred by either party hereto without the prior written
consent of the other party hereto.
6.3 No failure or delay on the part of either party hereto in exercising any
power or right hereunder shall operate as a waiver thereof nor shall any
single or partial exercise of such right or power preclude any other or
further exercise of any right or power hereunder.
7. GOVERNING LAW
7.1 This Agreement shall be governed by and construed in all respects in
accordance with the laws of Singapore.
7.2 Any dispute arising out of or in connection with this Agreement,
including any question regarding its existence, validity or termination,
shall be referred to and finally resolved by arbitration in Singapore in
accordance with the Arbitration Rules of the Singapore International
Arbitration Centre ("SIAC Rules") for the time being in force, which
Rules are deemed to be incorporated by reference into this Clause.
4
<PAGE> 5
IN WITNESS WHEREOF the parties have caused their duly authorised representatives
to set their hands.
Signed by Gan Chee Yen )
for and on behalf of )
SINGAPORE TECHNOLOGIES PTE LTD )
in the presence of:- ) /s/ Gan Chee Yen
) ---------------------
/s/ Karen Chang
- -----------------------------
Name: Karen Chang
Signed by BARRY WAITE, President & CEO )
for and on behalf of )
CHARTERED SEMICONDUCTOR )
MANUFACTURING LTD )
in the presence of:- ) /s/ Barry Waite
) ---------------------
/s/ Chia Song Hwee
- -----------------------------
Name: CHIA SONG HWEE
Chief Financial Officer
5
<PAGE> 6
APPENDIX
COMPUTATION OF CONSIDERATION
The Consideration payable to STPL shall be calculated on the following basis:
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------
DESCRIPTION OF SERVICES FEE BASIS AMOUNT (S$'000)
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C>
1 Corporate Secretarial Work
Comprising corporate secretarial Co Secretary + 2 280
support for CSM, CSP and SMP equivalent headcount
cost
- ---------------------------------------------------------------------------------------
2 Executive Resource Support
Comprising support provided to CSM 1 1/2 equivalent 200
Executive Resource and Compensation headcount cost
Committee ("ERCC") in the design and
implementation (including benchmarking)
of compensation structure for executives;
and together with CSM, support to CSM
ERCC in the implementation of decisions
and support for administration of
compensation of executives under CSM ERCC
- ---------------------------------------------------------------------------------------
3 Internal Audit
Comprising continuing audit plans, 2 equivalent 220
monitoring statutory compliance and
headcount cost compliance with relevant
procedures and policies.
- ---------------------------------------------------------------------------------------
4 Finance
Comprising treasury related activities, 1 1/2 equivalent 300
risk management, and accounting headcount
cost systems, policies, guidelines and
procedures
- ---------------------------------------------------------------------------------------
</TABLE>
6
<PAGE> 7
<TABLE>
<S> <C> <C> <C>
- ---------------------------------------------------------------------------------------
5 Information Technology Based on 520
reimbursement of its
share of group wide
licences and IT
infrastructure (eg
Lotus Notes,
Hyperion).
- ---------------------------------------------------------------------------------------
6 STPL Franchise
Comprising benefits derived from the Based on 0.25% of 5,750
STPL global network and affiliation to Group Sales or
STPL, and S$5mil, whichever is
lower.
Financial leverage such as bank Based on 0.5% of ST
guarantee support, provision of standby Financial Support or
credit facilities, improved credit S$5mil, whichever is
rating, easier access to funding and lower.
lower cost of borrowing.
GRAND TOTAL 7,270
- ---------------------------------------------------------------------------------------
</TABLE>
7
<PAGE> 8
Where :
CSM means the Company.
CSP means Chartered Silicon Partners Pte Ltd, a company incorporated in
Singapore and in which CSM holds 51% of its share capital. For as long as CSM
holds at least 51% of CSP's share capital, CSP shall be deemed a subsidiary of
CSM.
SMP means Silicon Manufacturing Partners Ptd Ltd, a company incorporated in
Singapore and in which CSM holds 49% of its share capital. SMP shall not be
deemed a subsidiary of CSM.
Group Sales means the Company and its subsidiaries' worldwide actual sales. As
the Consideration is payable in advance, the Consideration for this Service
shall be determined based on the Company and its subsidiaries' worldwide planned
sales at the beginning of the year, and at the end of the year, the final
Consideration payable for such Service shall be determined based on the actual
sales. STPL shall refund to the Company any excess payment and the Company shall
make payment to STPL of any shortfall in payment within fourteen (14) days after
the determination of the final Consideration payable for such Service.
ST Financial Support means the projected annual average outstanding amount of
(a) standby credit facilities provided by STPL to the Company and (b) guarantee
facilities provided by STPL to third parties to secure loans granted by such
third parties to the Company.
For the avoidance of doubt, the headcount cost allocated in the Appendix above
shall be applicable for the first year from the date hereof and shall be
adjusted every year thereafter based on mutual agreement.
8
<PAGE> 1
EXHIBIT 10.2
DATED 9TH NOVEMBER, 1999
CHARTERED SILICON PARTNERS PTE LTD
AS BORROWER
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE BRANCH
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
AS ARRANGERS
DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH
AS SENIOR LEAD MANAGER
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
AS LEAD MANAGER
THE SANWA BANK, LIMITED, SINGAPORE BRANCH
AS MANAGER
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE BRANCH
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
THE SANWA BANK, LIMITED, SINGAPORE BRANCH
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH
AS GUARANTOR BANKS
ABN AMRO BANK N.V., SINGAPORE BRANCH
BAYERISCHE LANDESBANK GIROZENTRALE, SINGAPORE BRANCH
CITIBANK, N.A., SINGAPORE BRANCH
OVERSEAS UNION BANK LIMITED
THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH
THE BANK OF TOKYO-MITSUBISHI, LTD., SINGAPORE BRANCH
DEN DANSKE BANK AKTIESELSKAB, SINGAPORE BRANCH
AS LENDING BANKS
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
------------------------------------------
SECOND SUPPLEMENTAL AGREEMENT
(BEING SUPPLEMENTAL TO THE CREDIT AGREEMENT FOR
(1) A S$236,800,000 GUARANTEE FACILITY
(2) A US$143,200,000 TERM LOAN FACILITY
DATED 12TH MARCH, 1998 AS SUPPLEMENTED BY
THE FIRST SUPPLEMENTAL AGREEMENT
DATED 14TH DECEMBER, 1998)
------------------------------------------
ALLEN & GLEDHILL,
36, ROBINSON ROAD, #18-01,
CITY HOUSE,
SINGAPORE 068877.
<PAGE> 2
C O N T E N T S
<TABLE>
<CAPTION>
CLAUSE HEADING PAGE
------ ------- ----
<S> <C> <C>
1. INTERPRETATION 1
2. AMENDMENTS TO CREDIT AGREEMENT 2
3. REPRESENTATIONS AND WARRANTIES 7
4. INCORPORATION 8
5. EXPENSES AND STAMP DUTY 8
6. GOVERNING LAW 8
SCHEDULE 1 - THE GUARANTOR BANKS AND
THE LENDING BANKS 9
SCHEDULE 2 - CONDITIONS PRECEDENT 10
APPENDIX 1 - FORM OF ATI GUARANTEE 12
APPENDIX 2 - FORM OF HP GUARANTEE 25
APPENDIX 3 - FORM OF SECOND SUPPLEMENTAL
SHAREHOLDERS UNDERTAKING 38
</TABLE>
<PAGE> 3
T H I S S E C O N D S U P P L E M E N T A L
A G R E E M E N T is made on 9th November, 1999 B E T W E E N:-
(1) CHARTERED SILICON PARTNERS PTE LTD (the "Borrower");
(2) ABN AMRO BANK N.V., SINGAPORE BRANCH, BAYERISCHE LANDESBANK GIROZENTRALE,
SINGAPORE BRANCH, CITIBANK, N.A., SINGAPORE BRANCH, OVERSEAS UNION BANK
LIMITED and THE SUMITOMO BANK, LIMITED, SINGAPORE BRANCH (the "Arrangers");
(3) THE SEVERAL BANKS AND FINANCIAL INSTITUTIONS named in Part A of Schedule 1
(the "Guarantor Banks");
(4) THE SEVERAL BANKS AND FINANCIAL INSTITUTIONS named in Part B of Schedule 1
(the "Lending Banks"); and
(5) ABN AMRO BANK N.V., SINGAPORE BRANCH, as agent for and on behalf of the
Banks (in such capacity, the "Agent", which expression shall include any of
its successors in such capacity),
and is supplemental to a Credit Agreement (the "Credit Agreement") dated 12th
March, 1998 made between (1) the Borrower, (2) the Arrangers, (3) the Guarantor
Banks, (4) the Lending Banks and (5) the Agent, as supplemented by a first
supplemental agreement (the "First Supplemental Agreement") dated 14th December,
1998 made between the parties to the Credit Agreement.
W H E R E A S:-
(A) Pursuant to the Credit Agreement, (1) the Guarantor Banks agreed to grant to
the Borrower a S$236,800,000 guarantee facility and (2) the Lending Banks agreed
to grant to the Borrower a US$143,200,000 term loan facility, upon the terms and
subject to the conditions of the Credit Agreement.
(B) Pursuant to the First Supplemental Agreement, the Borrower, the Arrangers,
the Guarantor Banks, the Lending Banks and the Agent have agreed to amend the
Credit Agreement to, inter alia, amend the applicable interest rate.
(C) The Borrower wishes to amend certain provisions of the Credit Agreement (as
supplemented by the First Supplemental Agreement) and has requested the
Arrangers, the Guarantor Banks, the Lending Banks and the Agent to make, and the
Arrangers, the Guarantor Banks, the Lending Banks and the Agent have agreed on
the terms and subject to the conditions set out in this Supplemental Agreement
to make, the amendments to the Credit Agreement (as supplemented by the First
Supplemental Agreement) set out in this Supplemental Agreement.
I T I S A G R E E D as follows:-
<PAGE> 4
2
1. INTERPRETATION
(A) In this Supplemental Agreement, except where the context otherwise
requires:-
"Amended and Restated Shareholders Undertaking" means the
amended and restated shareholders undertaking between (1) the
Borrower, as borrower, (2) the Shareholders, as shareholders,
and (3) the Agent, as agent, substantially in the form of the
Schedule to the Second Supplemental Shareholders Undertaking
(or in such other form as may be approved by the Agent and the
Banks);
"ATI Guarantee" means a guarantee from Agilent Technologies Inc. in favour
of the Agent, substantially in the form of Appendix 1;
"Effective Date" has the meaning ascribed to it in Clause 2;
"HP Guarantee" means a guarantee from Hewlett-Packard Company in favour of
the Agent, substantially in the form of Appendix 2;
"Second Supplemental Shareholders Undertaking" means the
second supplemental shareholders undertaking between (1) the
Borrower, as borrower, (2) the Shareholders, as shareholders,
and (3) the Agent, as agent, substantially in the form of
Appendix 3 (or in such other form as may be approved by the
Agent and the Banks); and
"Supplemental Documents" means the ATI Guarantee, the HP Guarantee, this
Supplemental Agreement and the Second Supplemental Shareholders
Undertaking.
(B) All terms and references used in this Supplemental Agreement and which are
defined or construed in the Credit Agreement but are not defined or construed in
this Supplemental Agreement shall have the same meaning and construction in this
Supplemental Agreement. All references hereafter in this Supplemental Agreement
to the Credit Agreement shall be to the Credit Agreement as amended,
supplemented or modified by the First Supplemental Agreement.
(C) The headings in this Supplemental Agreement are inserted for convenience
only and shall be ignored in construing this Supplemental Agreement. Unless
otherwise stated, references to the "Appendices", "Clauses" and "Schedules" are
to be construed as references to the appendices to, the clauses of, and the
schedules to this Supplemental Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT
The Borrower and each other party to this Supplemental Agreement agree that
with effect from November, 1999 (or such other date as may be agreed between
the Borrower and each other party to this Supplemental Agreement) (the
"Effective Date"), the Credit Agreement shall be amended as follows:-
(1) Clause 1(A) of the Credit Agreement shall be amended as
follows:-
(a) by inserting the following new definitions:-
" "ATE" means Agilent Technologies Europe B.V.,
a company
<PAGE> 5
3
incorporated in the Netherlands;";
" "ATI" means Agilent Technologies Inc., a company
incorporated in Delaware, United States of America;";
" "ATI Guarantee" means the guarantee from
ATI in favour of the Agent, substantially in
the identified form which shall be effective
for the period commencing on and from 1st
April, 2001 and ending on 31st March,
2003;";
" "HP Guarantee" means the guarantee from HP in favour of
the Agent, substantially in the identified form;";
" "Security Documents" means the ATI
Guarantee, the HP Guarantee and the
Shareholders Undertaking and any and every
other document from time to time executed to
guarantee, secure or otherwise assure the
performance of the obligations of the
Borrower under or in connection with this
Agreement (and any reference to a Security
Document shall be a reference to that
Security Document as from time to time
amended, modified or supplemented and any
document which amends, modifies or
supplements that Security Document);"; and
" "Shareholder Obligors" means:-
(i) the Shareholders;
(ii) (for the period commencing on and
from the date hereof and for so long
as HP has any obligations under the
HP Guarantee) HP; and
(iii) (for the period commencing on and
from 1st April, 2001 and for so long
as ATI has any obligations under the
ATI Guarantee) ATI;";
(b) the definition of "Financing Documents"
shall be amended by substituting the words
"Shareholders Undertaking" appearing in
lines 1 and 2 thereof with the words
"Security Documents";
(c) the definition of "Equity" shall be amended
by inserting the words "but without double
counting," before the words "the sum"
appearing in line 1 thereof;
(d) the definition of "HPE" shall be deleted in its entirety;
(e) the definition of "Joint Venture Agreement" shall be
deleted in its entirety and substituted with the following
definition:-
<PAGE> 6
4
" "Joint Venture Agreement" means the joint
venture agreement dated 13th March, 1997
made between (1) CSM, (2) EDBI, and (3) Hewlett-Packard
Europe B.V., as amended by an amendment agreement No. 1
dated 4th July, 1997 and an amendment agreement No.2 dated
1st October, 1999 made between (a) CSM, (b) EDBI and (c)
Hewlett-Packard Europe B.V. and as further amended by a deed
of accession and ratification dated made between CSM,
EDBI, HPE and ATE (and any reference to the Joint Venture
Agreement includes the Joint Venture Agreement as from time
to time amended, modified or supplemented and any document
which amends, modifies or supplements the Joint Venture
Agreement) and all references to "the date of the Joint
Venture Agreement" shall mean 13th March, 1997;"; and
(f) the definition of "Shareholders" shall be amended by
substituting the word "HPE" with the word "ATE";
(2) Clause 5(E) of the Credit Agreement shall be amended by inserting
the word "Obligor" after the word "Shareholder" appearing in
lines 5, 9 and 15 thereof;
(3) Clause 14 of the Credit Agreement shall be amended as follows:-
(a) paragraph (16)(b) shall be amended by substituting the word
"HP" appearing in line 1 thereof with the word "ATI"; and
(b) paragraph (17)(a) shall be amended as follows:-
(i) by inserting the words "at the date of the relevant
Information Package" before the word "(a)" appearing in
line 1 thereof; and
(ii) by substituting the word "the" appearing before the
words "Information Package" appearing in lines 1 and 2
thereof with the word "any"; and
(c) paragraph (17)(b) shall be amended by substituting the word
"the" appearing after the words "forecasts in" appearing in
line 1 thereof with the word "such";
(4) Clause 17(A) of the Credit Agreement shall be amended as
follows:-
(a) wherever the words "other than a Shareholder which has
discharged all its obligations under Clause 2(A) of the
Shareholders Undertaking" shall appear, there shall be added
the words "or ATI which has discharged all its obligations
under the ATI Guarantee or HP which has discharged all its
obligations under the HP Guarantee";
(b) paragraph (1) shall be amended as follows:-
<PAGE> 7
5
(i) by inserting the word "Obligor" after the word
"Shareholder" appearing in line 3 thereof; and
(ii) by substituting the words "Shareholders Undertaking"
appearing in line 4 thereof with the words "Financing
Documents to which it is a party";
(c) paragraph (2)(b) shall be amended as follows:-
(i) by inserting the word "Obligor" after the word
"Shareholder" appearing in lines 1 and 3 thereof; and
(ii) by substituting the words "Shareholders Undertaking"
appearing in line 4 thereof with the words "Financing
Documents to which it is a party";
(d) paragraph 3(b) shall be amended as follows:-
(i) by inserting the word "Obligor" after the word
"Shareholder" appearing after the word "any" in line 2
thereof; and
(ii) by substituting the words "Shareholders Undertaking"
appearing in lines 2 and 3 thereof with the words
"Financing Documents to which it is a party";
(e) paragraph 4 shall be amended by inserting the word "Obligor"
after the word "Shareholder" appearing twice in line 2
thereof;
(f) paragraph 5 shall be amended by inserting the word "Obligor"
after the word "Shareholder" appearing once in line 1 and
twice in line 18 thereof;
(g) paragraph 6 shall be amended by inserting the word "Obligor"
after the word "Shareholder" appearing twice in line 4
thereof;
(h) paragraph 7 shall be amended by inserting the word "Obligor"
after the word "Shareholder" appearing in lines 2 and 3
thereof;
(i) paragraph 8 shall be amended by inserting the word "Obligor"
after the word "Shareholder" appearing in lines 2, 3, 11, 12
and 15 thereof;
(j) paragraph 9 shall be amended by inserting the word "Obligor"
after the word "Shareholder" appearing in lines 1 and 2
thereof;
(k) paragraph 10 shall be amended by inserting the word
"Obligor" after the word "Shareholder" appearing in lines 4
and 5 thereof;
<PAGE> 8
6
(l) paragraph 12 shall be amended as follows:-
(i) by inserting the word "Obligor" after the word
"Shareholder" appearing in line 4 thereof; and
(ii) by substituting the words "Shareholders Undertaking"
appearing in line 5 thereof with the words "Financing
Documents to which it is a party";
(m) paragraph 13 shall be amended as follows:-
(i) by substituting the words "Shareholders Undertaking"
appearing in line 4 thereof with the words "Financing
Documents to which any of the Shareholder Obligors is a
party"; and
(ii) by inserting the word "Obligor" after the word
"Shareholder" appearing in lines 5 and 7 thereof;
(n) paragraph 14 shall be amended as follows:-
(i) by inserting the word "Obligor" after the word
"Shareholder" appearing in lines 7 and 11 thereof; and
(ii) by substituting the words "Shareholders Undertaking"
appearing in line 9 thereof with the words "Financing
Documents to which it is a party";
(o) paragraph 20(b) shall be amended by substituting the word
"HP" appearing in line 1 thereof with the word "ATI";
(p) paragraph 21 shall be amended by inserting the word
"Obligor" after the word "Shareholder" appearing in lines 1
and 2 thereof; and
(q) paragraph 23 shall be amended as follows:-
(i) by inserting the word "Obligor" after the word
"Shareholder" appearing in lines 6 and 7 thereof; and
(ii) by substituting the words "Shareholders Undertaking"
appearing in lines 10 and 11 thereof with the words
"Financing Documents to which it is a party"; and
(5) Clause 20 of the Credit Agreement shall be amended as follows:-
(a) paragraph (B)(1) shall be amended by inserting the word
"Obligor" after the word "Shareholder" appearing in line 3
thereof;
<PAGE> 9
7
(b) paragraph (C)(5) shall be amended by inserting the word
"Obligor" after the word "Shareholder" appearing in line 4
thereof;
(c) paragraph (D)(1) shall be amended by inserting the word
"Obligor" after the word "Shareholder" appearing in line 4
thereof;
(d) paragraph (D)(2) shall be amended by inserting the word
"Obligor" after the word "Shareholder" appearing in lines 3
and 4 thereof;
(e) paragraph (G) shall be amended by substituting the word
"Shareholders" appearing in line 5 thereof with the words
"Shareholder Obligors";
(f) paragraph (G)(2) shall be amended by inserting the word
"Obligor" after the word "Shareholder" appearing in line 5
thereof; and
(g) paragraph (G)(3) shall be amended by inserting the word
"Obligor" after the word "Shareholder" appearing in line 3
thereof,
provided that (I) on or before the Effective Date, the Agent has notified the
Borrower and the Banks that it has received (in form and substance satisfactory
to it) each of the documents specified in Schedule 2 and (II) on the Effective
Date (aa) the representations and warranties contained in Clause 14 of the
Credit Agreement (as amended by this Supplemental Agreement) and in Clause 3 of
this Supplemental Agreement are true and correct in all respects as of the
Effective Date as if made on the Effective Date with respect to the facts and
circumstances existing at such date and (bb) no Event of Default or Potential
Event of Default has occurred.
3. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to and for the benefit of
each other party to this Supplemental Agreement that:-
(1) all action, conditions and things required to be
taken, fulfilled and done (including the obtaining of
any necessary consents) in order (a) to enable it
lawfully to enter into, exercise its rights and
perform and comply with its obligations under the
Supplemental Documents and (b) to make the
Supplemental Documents admissible in evidence in the
courts of Singapore, have been taken, fulfilled and
done;
(2) its entry into, exercise of its rights and/or
performance of or compliance with its obligations
under the Supplemental Documents do not and will not
violate (a) any law to which it is subject, (b) its
Memorandum and Articles of Association or (c) to an
extent or in a manner which has or will have a
material adverse effect on it, any agreement to which
it is a party or which
<PAGE> 10
8
is binding on it or its assets; and
(3) this Supplemental Agreement, the Credit Agreement (as
amended by this Supplemental Agreement) and the other
Supplemental Documents constitute its valid, binding
and enforceable obligations.
4. INCORPORATION
(A) The Credit Agreement and this Supplemental Agreement shall be
read and construed as one document and this Supplemental Agreement shall be
considered as part of the Credit Agreement and, without prejudice to the
generality of the foregoing, where the context so allows, references in the
Credit Agreement to "this Agreement", howsoever expressed, shall be read and
construed as references to the Credit Agreement as amended, modified or
supplemented by this Supplemental Agreement.
(B) Except to the extent expressly amended by the provisions of
this Supplemental Agreement, the terms and conditions of the Credit Agreement
and all other instruments and agreements executed, delivered or entered into
thereunder or pursuant thereto are hereby confirmed and shall remain in full
force and effect.
5. EXPENSES AND STAMP DUTY
The Borrower shall pay:-
(i) on demand, all costs and expenses (including legal
fees and all goods and services, value added and
other duties or taxes payable on such costs and
expenses) reasonably incurred by the Agent and/or the
Arrangers in connection with the preparation,
negotiation or entry into of the Supplemental
Documents; and
(ii) promptly, and in any event before any interest or
penalty becomes payable, any stamp, goods and
services, value added, documentary, registration or
similar duty or tax payable in connection with the
entry into, enforcement and admissibility in evidence
of the Supplemental Documents and shall indemnify the
Agent, the Arrangers, the Guarantor Banks and the
Lending Banks against any liability with respect to
or resulting from any delay in paying or omission to
pay any such duty or tax.
6. GOVERNING LAW
This Supplemental Agreement shall be governed by, and
construed in accordance with, the laws of Singapore.
<PAGE> 11
9
S C H E D U L E 1
Part A - Guarantor Banks
1. ABN AMRO Bank, N.V., Singapore Branch
2. Bayerische Landesbank Girozentrale, Singapore Branch
3. Citibank, N.A., Singapore Branch
4. Overseas Union Bank Limited
5. The Sumitomo Bank, Limited, Singapore Branch
6. The Sanwa Bank, Limited, Singapore Branch
7. The Bank of Tokyo-Mitsubishi, Ltd., Singapore Branch
8. Den Danske Bank Aktieselskab, Singapore Branch
Part B - Lending Banks
1. ABN AMRO Bank, N.V., Singapore Branch
2. Bayerische Landesbank Girozentrale, Singapore Branch
3. Citibank, N.A., Singapore Branch
4. Overseas Union Bank Limited
5. The Sumitomo Bank, Limited, Singapore Branch
6. The Bank of Tokyo-Mitsubishi, Ltd., Singapore Branch
7. Den Danske Bank Aktieselskab, Singapore Branch
<PAGE> 12
10
S C H E D U L E 2
CONDITIONS PRECEDENT
1. A certified copy of each of (1) the certificate of
incorporation (or its equivalent) of each of ATI, ATE and HP, (2) the Memorandum
and Articles of Association (or its equivalent) of each of ATI, ATE and HP.
2. A copy, certified true by an authorised officer of the
Borrower as being in full force and effect on the date thereof, of:-
(1) all actions required to be taken by the Borrower (a)
authorising the entry into of the Supplemental
Documents and (b) authorising appropriate persons to
execute and deliver the Supplemental Documents on
behalf of the Borrower and to take any action
contemplated in the Supplemental Documents; and
(2) all necessary consents required by the Borrower for
the execution, delivery and performance of the
Supplemental Documents or, if no such consents are
necessary, a certificate to that effect from a person
duly authorised by the Borrower so to certify.
3. Specimen signatures of the respective persons referred to in
paragraph 2 above, duly certified by an authorised officer of the Borrower,
together with certificates of incumbency, also duly certified, in respect of
each such person.
4. A copy, certified true by an authorised officer of each of
ATE, ATI, CSM, EDBI and HP as being in full force and effect on the date
thereof, of:-
(1) all actions required to be taken by that party (a)
authorising the entry into of the Supplemental
Documents to which it is a party and (b) authorising
appropriate persons to execute and deliver the
Supplemental Documents to which it is a party on
behalf of that party and to take any action
contemplated in the Supplemental Documents to which
it is a party; and
(2) all necessary consents required by that party for the
execution, delivery and performance of the
Supplemental Documents to which it is a party or, if
no such consents are necessary, a certificate to that
effect from a person duly authorised by that party so
to certify.
5. Specimen signatures of the respective persons referred to in
paragraph 4 above, duly certified by an authorised officer of each of ATE, ATI,
CSM, EDBI and HP, together with certificates of incumbency, also duly certified,
in respect of each such person.
6. The Second Supplemental Shareholders Undertaking, together
with all documents which may be required or necessary for the purposes of
perfecting the Second Supplemental Shareholders Undertaking, duly executed by
the Borrower, each of ATE, CSM and EDBI and the Agent.
<PAGE> 13
11
7. The ATI Guarantee, together with all documents which may be
required or necessary for the purposes of perfecting the ATI Guarantee, duly
executed by ATI.
8. The HP Guarantee, together with all documents which may be
required or necessary for the purposes of perfecting the HP Guarantee, duly
executed by HP.
9. Legal opinions dated on or after the date of this
Supplemental Agreement from:-
(1) Caron & Stevens/Baker & McKenzie, legal advisers in
the Netherlands to the Arrangers, the Banks and the
Agent, as to such matters of the laws of the
Netherlands relevant to the Second Supplemental
Shareholders Undertaking as the Agent may request;
(2) Wilson Sonsini Goodrich & Rosati, legal advisers in
the United States of America to the Arrangers, the
Banks and the Agent, as to such matters of the laws
of the United States of America relevant to the ATI
Guarantee and the HP Guarantee as the Agent may
request; and
(3) Allen & Gledhill, legal advisers in Singapore to the
Arrangers, the Banks and the Agent, as to such
matters of the laws of Singapore relevant to the
Supplemental Documents as the Agent may request.
<PAGE> 14
12
A P P E N D I X 1
FORM OF ATI GUARANTEE
DATED NOVEMBER, 1999
AGILENT TECHNOLOGIES, INC.
AS ATI
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
-------------------------------------------------
ATI GUARANTEE
-------------------------------------------------
ALLEN & GLEDHILL,
36, ROBINSON ROAD, #18-01,
CITY HOUSE,
SINGAPORE 068877.
<PAGE> 15
13
C O N T E N T S
<TABLE>
<CAPTION>
CLAUSE HEADING PAGE
- ------ ------- -----
<S> <C> <C>
1. INTERPRETATION
2. UNDERTAKINGS BY ATI
3. REPRESENTATIONS AND WARRANTIES
4. UNDERTAKINGS
5. PAYMENTS
6. NATURE OF RIGHTS AND OBLIGATIONS
7. EXPENSES
8. BENEFIT OF AGREEMENT
9. WAIVERS
10. COMMUNICATIONS
11. PARTIAL INVALIDITY
12. GOVERNING LAW AND JURISDICTION
</TABLE>
<PAGE> 16
14
T H I S G U A R A N T E E is made on November, 1999
B E T W E E N:-
(1) AGILENT TECHNOLOGIES, INC ("ATI"), a company incorporated
in Delaware with its registered office at 1209, Orange
Street, Wilmington, Delaware 19801, County of New Castle,
Delaware; and
(2) ABN AMRO BANK N.V., SINGAPORE BRANCH, a banking corporation
incorporated in the Netherlands and acting through its
Singapore branch at 63, Chulia Street, Singapore 049514, as
agent for and on behalf of the Banks (in such capacity, the
"Agent", which expression shall include any of its successors
in such capacity).
W H E R E A S:-
(A) By a Credit Agreement (the Credit Agreement as amended by the
First Supplemental Agreement (as defined below) and the Second Supplemental
Agreement (as defined below), the "Credit Agreement") dated 12th March, 1998
made between (1) Chartered Silicon Partners Pte Ltd (the "Borrower"), a company
incorporated in Singapore with its registered office at 60, Woodlands Industrial
Park D, Street 2, Singapore 738406, as borrower, (2) ABN AMRO Bank N.V.,
Singapore Branch, Bayerische Landesbank Girozentrale, Singapore Branch,
Citibank, N.A., Singapore Branch, Overseas Union Bank Limited and The Sumitomo
Bank, Limited, Singapore Branch, as arrangers, (3) the Guarantor Banks named
therein (the "Guarantor Banks"), as guarantor banks, (4) the Lending Banks named
therein (the "Lending Banks"), as lending banks, and (5) the Agent, as agent,
the Guarantor Banks agreed to grant to the Borrower a S$236,800,000 guarantee
facility and the Lending Banks agreed to grant to the Borrower a US$143,200,000
term loan facility, upon the terms and subject to the conditions of the Credit
Agreement.
(B) By a Shareholders Undertaking dated 1st July, 1998 made
between (1) the Borrower, as borrower, (2) the Shareholders named therein, as
shareholders, and (3) the Agent, as agent, as amended and restated by the First
Supplemental Shareholders Undertaking (as defined below) and the Second
Supplemental Shareholders Undertaking (as defined below) (the "Shareholders
Undertaking"), the Shareholders have agreed to give the undertakings therein
contained to the Agent and the Banks as security for the obligations of the
Borrower under or in connection with the Credit Agreement.
(C) ATI (after giving due consideration to the terms and
conditions of the Financing Documents (as defined below) and satisfying itself
that there are reasonable grounds for believing that the entry into by it of
this Guarantee will benefit it) has agreed to enter into this Guarantee and give
the undertakings provided in this Guarantee.
I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) Definitions: In this Guarantee, except to the extent that the
context requires otherwise:-
"ATE" means Agilent Technologies Europe B.V., a company
incorporated in the Netherlands;
"Financing Documents" means the Credit Agreement and the
Security Documents;
<PAGE> 17
15
"First Supplemental Agreement" means the first supplemental
agreement dated 14th December, 1998 between the parties to the
Credit Agreement, being supplemental to the Credit Agreement;
"First Supplemental Shareholders Undertaking" means the
supplemental shareholders' undertaking dated 16th December,
1998 made between the parties to the Shareholders Undertaking;
"Second Supplemental Shareholders Undertaking" means the
supplemental shareholders' undertaking dated November,
1999 made between the parties to the Shareholders Undertaking;
"Second Supplemental Agreement" means the second supplemental
agreement dated November, 1999 between the parties to the
Credit Agreement, being
supplemental to the Credit Agreement as supplemented by the
First Supplemental Agreement; and
"Termination Date" means, in relation to ATI, the date on
which ATI has fulfilled all its obligations under Clause 2(A).
(B) Financing Documents: All terms and references used in this
Guarantee and which are defined or construed in the Financing Documents but are
not defined or construed in this Guarantee shall have the same meaning and
construction in this Guarantee. Any reference in this Guarantee to a Financing
Document shall include that Financing Document as amended, modified or
supplemented from time to time and any document which amends, modifies or
supplements that Financing Document.
(C) This Guarantee: Except to the extent that the context
otherwise requires, any reference to "this Guarantee" includes this Guarantee as
from time to time amended, modified or supplemented and any document which is
supplemental hereto.
(D) Headings and Clauses: The headings in this Guarantee are
inserted for convenience only and shall be ignored in construing this Guarantee.
Unless the context otherwise requires, words denoting the singular number only
shall include the plural and vice versa. References to a statute shall be deemed
to be references to that statute as from time to time amended or re-enacted.
Save as otherwise indicated, references to "Clauses" are to be construed as
references to the clauses of this Guarantee.
2. UNDERTAKINGS BY ATI
(A) Guarantee: In consideration of the Banks agreeing to grant
their respective shares of the Facility to the Borrower and/or the Banks
otherwise acting under or in connection with the Financing Documents (copies of
which ATI acknowledges receipt), ATI hereby unconditionally and irrevocably
guarantees to the Agent and each of the Banks, as a continuing guarantee subject
to Clause 2(C), the due and punctual performance by ATE of all its obligations,
commitments and undertakings under or pursuant to the Shareholders Undertaking,
including but not limited to, the due and punctual payment by ATE of all sums
whatsoever which are or at any time may be or become due from or owing by ATE
under the Shareholders Undertaking, including without limitation, under Clause
2(A)(1), 2(A)(2) and/or 2(A)(3) of the Shareholders Undertaking, and
<PAGE> 18
16
unconditionally and irrevocably undertakes and agrees that, if for any reason
ATE does not perform any of its obligations under the Shareholders Undertaking
(including the payment of any sums thereunder) by the time, on the date, in the
currency and otherwise in the manner specified in the Shareholders Undertaking,
ATI will, on demand by the Agent or any of the Banks, perform such obligation on
behalf of ATE (including, without limitation, paying on behalf of ATE, or
ensuring the payment of, such sums to the Borrower (in the case of any such sums
due under Clause 2(A)(2) and/or Clause 2(A)(3) of the Shareholders Undertaking)
or undertaking on behalf of ATE, or ensuring the undertaking of, the relevant
expenditure (in the case of any such sums due under Clause 2(A)(1) of the
Shareholders Undertaking)).
(B) Obligations Unconditional: The obligations of ATI under this
Clause are unconditional and absolute, irrespective of (1) any event, however
fundamental, outside the control of the Borrower or ATI or any other person
preventing the Borrower from achieving Completion by the Scheduled Completion
Date, (2) any winding-up, liquidation or dissolution of the Borrower, (3) any
Event of Default or action taken by the Agent or any Bank under the Financing
Documents or any enforcement of any security constituted by any Financing
Document, (4) whether the Project or the business of the Borrower is being
carried on by any receiver, judicial manager or other person and (5) any other
circumstances whatsoever.
(C) Termination: ATI's obligations under this Agreement shall
take effect on and from 1st April, 2001 and shall terminate on 31st March, 2003
(the "End Date") without prejudice to any obligation accrued before the End Date
and Provided That the representation and warranty made by ATI in Clause 3(11)
below and repeated in accordance with the provisions of Clause 3(12) below shall
take effect from the date of this Agreement.
3. REPRESENTATIONS AND WARRANTIES
(A) ATI represents and warrants to and for the benefit of the
Agent and each of the Banks that:-
(1) Status: it is a company duly incorporated and validly
existing under the laws of the State of Delaware, and has
the power and authority to own its assets and to conduct the
business which it conducts;
(2) Powers: it has the power to enter into, exercise its rights
and perform and comply with its obligations under this
Guarantee;
(3) Authorisations and Consents: all action, conditions and
things required to be taken, fulfilled and done (including
the obtaining of any necessary consents) in order (a) to
enable it lawfully to enter into, exercise its rights and
perform and comply with its obligations under this
Guarantee, (b) to ensure that those obligations are valid,
legally binding and enforceable, and (c) to make this
Guarantee admissible in evidence in the courts of Singapore
and the State of Delaware have been taken, fulfilled and
done;
(4) Non-Violation of Laws: its entry into, exercise of its
rights and/or performance of or compliance with its
obligations under this Guarantee do not and will not
violate, or exceed any power or restriction granted or
imposed by, (a) any law to which it is subject or (b) its
constitutive
<PAGE> 19
17
documents;
(5) Obligations Binding: its obligations under this Guarantee
are valid, binding and enforceable;
(6) Non-Violation of Other Agreements: its entry into, exercise
of its rights and/or performance of or compliance with its
obligations under this Guarantee do not and will not
violate, to an extent or in a manner which has or will have
a material adverse effect on it, any agreement to which it
is a party or which is binding on it or its assets;
(7) No Material Adverse Change: there has been no material
adverse change in its financial condition or operations
since the date of its last published annual report;
(8) Litigation: no litigation, arbitration or administrative
proceeding is current or pending (a) to restrain the entry
into, exercise of its rights under and/or performance or
enforcement of or compliance with its obligations under this
Guarantee or (b) which has or will have a material adverse
effect on it;
(9) Winding-up: no meeting has been convened for its winding-up
or for the appointment of a receiver, trustee, judicial
manager or similar officer of it, its assets or any of them,
no such step is intended by it and, so far as it is aware,
no petition, application or the like is outstanding for its
winding-up or for the appointment of a receiver, trustee,
judicial manager or similar officer of it, its assets or any
of them;
(10) No Default: as far as it is aware after having made all due
and proper enquiries, no Event of Default or Potential Event
of Default has occurred, and it is not in breach of or
default under any agreement to an extent or in a manner
which has or will have a material adverse effect on it;
(11) Information Pack: at 13th October, 1999, the information in
the Information Pack relating to, and provided by, it was
true, complete and accurate in all material respects; and
(12) Repetition: each of the above representations and warranties
will be correct and complied with in all material respects
at all times up to the Termination Date as if repeated then
by reference to the then existing circumstances.
4. UNDERTAKINGS
ATI undertakes that, at all times prior to the Termination
Date:-
(1) it will, as soon as available and in any event within 180
days after the end of each of its financial years
(beginning with the current one), deliver, or cause to be
delivered, to the Agent enough copies for the Banks (on
the
<PAGE> 20
18
basis of one copy for each Bank) of its published
annual report as at the end of and for that
financial year;
(2) Litigation: it will, as soon as reasonably
practicable, deliver to the Agent for distribution to
the Banks details of any litigation, arbitration or
administrative proceeding which, if to its knowledge
had been current or pending at the date of this
Guarantee, would have rendered the representation and
warranty in Clause 3(8) incorrect;
(3) Other Information: it will, as soon as reasonably
practicable, deliver to the Agent for distribution to
the Banks such other information relating to its
financial condition or business of it as the Agent
(or any Bank through the Agent) may from time to time
reasonably require (except for information of a
proprietary nature or which is reasonably regarded by
it as confidential); and
(4) Further Assurance: it will from time to time on
reasonable request by the Agent acting on the
instructions of the Majority Banks do or procure the
doing of all such acts and will execute or procure
the execution of all such documents as may be
reasonably necessary for giving full effect to this
Guarantee or securing to the Agent and the Banks the
full benefits of all rights, powers and remedies
conferred upon the Agent and the Banks in this
Guarantee.
5. PAYMENTS
(A) Taxes: (1) All sums payable by ATI under this Guarantee shall
be paid (1) free of any restriction or condition, (2) free and clear of and
(except to the extent required by law) without any deduction or withholding for
or on account of any tax and (3) without deduction or withholding (except to the
extent required by law) on account of any other amount, whether by way of
set-off or otherwise.
(2) If ATI or any other person (whether or not a party to, or on
behalf of a party to, this Guarantee) must at any time deduct or withhold any
tax or other amount from any sum paid or payable by, or received or receivable
from, ATI under this Guarantee, ATI shall pay such additional amount as is
necessary to ensure that the Agent or, as the case may be, the Bank to which
that sum is due, receives on the due date and retains (free from any liability
other than tax on its own overall net income) a net sum equal to what it would
have received and so retained had no such deduction or withholding been required
or made.
(3) If ATI or any other person (whether or not a party to, or on
behalf of a party to, this Guarantee) must at any time pay any tax or other
amount on, or calculated by reference to, any sum received or receivable by the
Agent or, as the case may be, any of the Banks from ATI under this Guarantee
(except for a payment by the Agent or a Bank of tax on its own overall net
income), ATI shall pay or procure the payment of that tax or other amount before
any interest or penalty becomes payable or, if that tax or other amount is
payable and paid by the Agent or any Bank, shall reimburse it on demand for the
amount paid by it.
(4) Within 30 days after paying any sum from which it is required
by law to make any deduction or withholding, and within 30 days after the due
date of payment of any tax or other
<PAGE> 21
19
amount which it is required by paragraph (3) above to pay, ATI shall deliver to
the Agent evidence reasonably satisfactory to the Agent or, as the case may be,
the relevant Bank of that deduction, withholding or payment and (where
remittance is required) of the remittance thereof to the relevant taxing or
other authority.
(5) As soon as ATI is aware that any such deduction, withholding
or payment is required (or any change in any such requirement), ATI shall notify
the Agent.
(B) Goods and Services Tax: ATI shall also pay to the Agent and
each Bank on demand, in addition to any amount payable by ATI under this
Guarantee, any goods and services, value added or other similar tax payable in
respect of that amount (and any reference in this Guarantee to that amount shall
be deemed to include any such taxes payable in addition to it).
(C) Refund of Tax Credits: If:-
(1) ATI makes a payment under sub-Clause (A)(2) or (3) (a
"Tax Payment") in respect of a payment to a Bank
under this Guarantee; and
(2) that Bank determines in its absolute discretion that
it has obtained a refund of tax or obtained and used
a credit against tax on its overall net income (a
"Tax Credit") which that Bank in its absolute
discretion is able to identify as attributable to
that Tax Payment,
then, if in its absolute discretion it can do so without any adverse
consequences for that Bank, that Bank shall reimburse ATI such amount as that
Bank in its absolute discretion determines to be such proportion of that Tax
Credit as will leave that Bank (after that reimbursement) in no better or worse
position in respect of its worldwide tax liabilities than it would have been in
if no Tax Payment had been required. A Bank shall have an absolute discretion as
to whether to claim any Tax Credit (and, if it does claim, the extent, order and
manner in which it does so) and whether any amount is due from it under this
sub-Clause (C) (and, if so, what amount and when). No Bank shall be obliged to
disclose any information regarding its tax affairs and computations.
(D) Currency Indemnity: (1) Any amount received or recovered by
the Agent or any Bank in respect of any sum expressed to be due to it from ATI
under or in connection with this Guarantee in a currency (such currency being
referred to as the "Relevant Currency") other than the currency in which such
sum is expressed to be due under this Guarantee (such currency being referred to
as the "Currency of Account") whether as a result of, or of the enforcement of,
a judgment or order of a court or tribunal of any jurisdiction, in the
winding-up of ATI or otherwise, shall only constitute a discharge to ATI to the
extent of the amount in the Currency of Account which the recipient is able, in
accordance with its usual practice, to purchase with the amount of the Relevant
Currency so received or recovered on the date of that receipt or recovery (or,
if it is not practicable to make that purchase on that date, on the first date
on which it is practicable to do so).
(2) If that amount in the Currency of Account is less than the
amount of the Currency of Account due to the recipient under or in connection
with this Guarantee, ATI shall indemnify it against any loss sustained by it as
a result. In any event, ATI shall indemnify the recipient against the cost of
making any such purchase. For the purpose of this sub-Clause (D), it will be
sufficient for the recipient to demonstrate that it would have suffered a loss
had an actual exchange or purchase been made.
<PAGE> 22
20
(3) Each of the indemnities in this sub-Clause (D) constitutes a
separate and independent obligation from the other obligations in this
Guarantee, shall give rise to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by the Agent, any Arranger and/or
any Bank and shall continue in full force and effect despite any judgment,
order, claim or proof for a liquidated amount in respect of any sum due under
this Guarantee or any other judgment or order.
6. NATURE OF RIGHTS AND OBLIGATIONS
(A) No Release: The obligations of ATI under this Guarantee
(excluding, for the avoidance of doubt, any obligation of ATI under this
Guarantee which has been discharged) shall not be discharged, impaired or
otherwise affected by any act, omission, matter or thing which, but for this
sub-Clause (A), may operate to release or otherwise exonerate ATI from its
obligations under this Guarantee in whole or in part, including without
limitation and whether or not known to it or any other person:-
(1) any variation in or to the Project;
(2) any time, indulgence, concession waiver or consent at
any time given by the Agent and/or any of the Banks
to the Borrower, ATE, ATI or any other person;
(3) any amendment or supplement to any provision of any
Financing Document or any other agreement, security,
guarantee or indemnity relating to the Financing
Documents;
(4) the making or the absence of any demand on the
Borrower, ATI or any other person for payment;
(5) the enforcement or absence of enforcement of or
release of any of the Financing Documents or any
other agreement, security, guarantee or indemnity
relating to the Financing Documents;
(6) the winding-up, insolvency, bankruptcy, amalgamation,
reconstruction or reorganisation of the Borrower,
ATE, ATI or any other person;
(7) the illegality, invalidity or unenforceability of or
any defect in any provision of any Financing Document
or any other agreement, security, guarantee or
indemnity or any of the obligations of the Borrower,
ATE, ATI or any other person thereunder, whether on
the grounds of ultra vires, not being in the
interests of the Borrower, ATE, or any other person,
not having been duly authorised, executed or
delivered by the Borrower, ATE or any other person or
for any reason whatsoever; or
(8) any other act, event or omission which but for this
provision would or might operate to impair or
discharge the obligations of ATI under this
Guarantee.
(B) Continuing Obligations: The obligations of ATI under this
Guarantee are continuing
<PAGE> 23
21
obligations, will not be discharged by any intermediate payment and will remain
in full force and effect until the obligations under this Guarantee have been
fulfilled (for the avoidance of doubt, nothing in this sub-Clause (B) shall
affect any obligation of ATI which has been discharged by the due and proper
performance by ATI of such obligations).
(C) Reinstatement: (1) Any settlement or discharge between the Agent
or any of the Banks and ATI shall be conditional upon no security or payment to
the Agent or such Bank by ATE or any other person being avoided or reduced by
virtue of any provision or enactment relating to bankruptcy, insolvency or
winding-up for the time being in force or by virtue of any obligation to give
effect to any preference or priority and the Agent or such Bank (as the case may
be) shall be entitled to recover the value or amount of any such security or
payment from ATI subsequently as if such settlement or discharge had not
occurred.
(2) Without prejudice to the provisions of paragraph (1), where any
discharge (whether in respect of the obligations of ATI or any security for
those obligations or otherwise) is made in whole or in part or any arrangement
is made on the faith of any payment, security or other disposition which is
avoided or must be repaid on bankruptcy, insolvency or winding-up or otherwise
without limitation, the liability of ATI under this Guarantee shall, unless the
Agent and the Banks agree otherwise, continue as if the discharge or
arrangement, as the case may be, had not occurred.
(D) Failure by ATI: The failure of ATI to perform or comply with any
of its obligations under this Guarantee shall not release ATI of its obligations
under this Guarantee.
(E) Immediate Recourse: ATI waives any right which it may have of first
requesting the Agent or any of the Banks to proceed against or enforce any other
rights or security or claim payment from the Borrower, ATE, ATI or any other
person before claiming from ATI under this Guarantee.
(F) Additional Security: This Agreement shall be in addition to and
shall not in any way be prejudiced by any other security now or hereafter held
by the Agent or any Bank as security for the obligations of the Borrower under
the Credit Agreement or the obligations of ATE under the Shareholders
Undertaking.
7. EXPENSES
ATI shall pay on demand all costs and expenses (including
legal expenses on a full indemnity basis) reasonably incurred by the Agent
and/or any of the Banks in protecting or enforcing any rights against it under
this Guarantee.
8. BENEFIT OF AGREEMENT
(A) ATI: ATI may not assign or transfer any of its rights,
benefits or obligations under this Guarantee.
(B) Agent/Banks: (1) Each of the Agent and the Banks may assign
all or part of its
<PAGE> 24
22
rights under this Guarantee without the consent of any party to any assignee or
transferee under the Credit Agreement. Any such assignee shall be entitled to
the full benefit of this Guarantee to the same extent as if it were an original
party in respect of the rights assigned to it.
(2) ATI shall not be liable for any costs or expenses which may be
incurred in connection with any assignment or transfer of any of the rights of
the Agent or any of the Banks under this Guarantee.
(C) Disclosure of Information: The Agent or any of the Banks may
disclose on a confidential basis to any other party to the Financing Documents
or any of its other branches or its headquarters or to an actual or potential
New Lending Bank, assignee, sub-participant or the like such information about
ATI or any other person as it may think fit and may disclose to such party such
information about ATI with the prior consent in writing of ATI (Provided that,
at any time and from time to time after the making of a declaration under Clause
17(B) of the Credit Agreement, (1) no such consent will be required for any such
disclosure and (2) the Agent or the relevant Bank making any such disclosure
shall, if practicable, consult with ATI prior to making any such disclosure and
shall consider in good faith any request from ATI to the Agent or such Bank not
to make any such disclosure or to delay making any such disclosure).
(D) Limitation on Certain Obligations: If, at the time of any
assignment or transfer by a Bank, circumstances exist which would oblige ATI to
pay to the assignee or transfer under Clause 5(A) any sum in excess of the sum
(if any) which it would have been obliged to pay to that Bank under that Clause
in the absence of that assignment or transfer, ATI shall not be obliged to pay
that excess.
9. WAIVERS
No failure on the part of the Agent or any of the Banks to
exercise, and no delay on its part in exercising, any right or remedy under this
Guarantee will operate as a waiver thereof, nor will any single or partial
exercise of any right or remedy preclude any other or further exercise thereof
or the exercise of any other right or remedy. The rights and remedies provided
in this Guarantee are cumulative and not exclusive of any other rights or
remedies (whether provided by law or otherwise).
10. COMMUNICATIONS
(A) Addresses: Each communication under this Guarantee shall be made
by fax, telex or otherwise in writing. Each communication or document to be
delivered to any party under this Guarantee shall be sent to that party at the
fax number, telex number or address, and marked for the attention of the person
(if any), from time to time designated by that party to the Agent (or, in the
case of the Agent, by it to each other party) for the purpose of this Guarantee.
The initial fax number, telex number, address and person (if any) so designated
by each party are set out against its name at the end of this Guarantee.
(B) Deemed Delivery: Any communication under this Guarantee shall be
deemed to have been received (if sent by fax or telex) on the day of despatch or
(in any other case) when left at the address required by sub-Clause (A) above or
within five days after being sent by prepaid post (by airmail if to another
country) addressed to it at that address.
<PAGE> 25
23
11. PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any
provision of this Guarantee under the law of any jurisdiction shall not affect
its legality, validity or enforceability under the law of any other jurisdiction
nor the legality, validity or enforceability of any other provision.
12. GOVERNING LAW AND JURISDICTION
(A) Governing Law: This Agreement shall be governed by, and
construed in accordance with, the laws of Singapore.
(B) Singapore Courts: For the benefit of the Agent and each Bank,
all the parties irrevocably agree that the courts of Singapore are to have
jurisdiction to settle any disputes which may arise out of or in connection with
this Guarantee and that, accordingly, any legal action or proceedings arising
out of or in connection with this Guarantee ("Proceedings") may be brought in
those courts and each of the Borrower and ATI irrevocably submits to the
jurisdiction of those courts.
(C) Other Competent Jurisdiction: Nothing in this Clause shall
limit the right of the Agent and/or any Bank to take Proceedings against ATI in
any other court of competent jurisdiction nor shall the taking of Proceedings in
one or more jurisdictions preclude the Agent and/or any Bank from taking
Proceedings in any other jurisdiction, whether concurrently or not.
(D) Venue: ATI irrevocably waives any objection which it may at
any time have to the laying of the venue of any Proceedings in any court
referred to in this Clause and any claim that any such Proceedings have been
brought in an inconvenient forum.
(E) Service of Process: ATI irrevocably appoints Agilent
Technologies Singapore Pte Ltd (now of 438B, Alexandra Road, #05-05, #05-07/12,
Alexandra Technopark B, Singapore 119962, attention: Legal Counsel) to receive,
for it and on its behalf, service of process in any Proceedings in Singapore.
Such service shall be deemed completed on delivery to the process agent (whether
or not it is forwarded to and received by ATI). If for any reason the process
agent ceases to be able to act as such or no longer has an address in Singapore,
ATI irrevocably agrees to appoint a substitute process agent acceptable to the
Agent, and to deliver to the Agent a copy of the new agent's acceptance of that
appointment, within 30 days. Nothing shall affect the right to serve process in
any other manner permitted by law.
(F) Consent to Enforcement, etc.: ATI irrevocably and generally
consents in respect of any Proceedings anywhere to the giving of any relief or
the issue of any process in connection with those Proceedings including, without
limitation, the making, enforcement or execution against any assets whatsoever
(irrespective of their use or intended use) of any order or judgment which may
be made or given in those Proceedings.
(G) Waiver of Immunity: ATI irrevocably agrees that, should the
Agent or any Bank take any Proceedings anywhere (whether for an injunction,
specific performance, damages or otherwise), no immunity (to the extent that it
may at any time exist, whether on the grounds of sovereignty or otherwise) from
those Proceedings, from attachment (whether in aid of execution, before judgment
or otherwise) of its assets or from execution of judgment shall be claimed by it
or on its behalf or with respect to its assets, any such immunity being
irrevocably waived. ATI irrevocably agrees that it and its assets are, and shall
be, subject to such Proceedings, attachment or execution in respect of its
obligations under this Guarantee.
<PAGE> 26
24
I N W I T N E S S W H E R E O F this Guarantee has
been entered into on the date stated at the beginning.
ATI
Signed, Sealed and Delivered )
by _________________________________ )
as attorney for and on behalf of )
AGILENT TECHNOLOGIES, INC )
in the presence of:- )
1209, Orange Street,
Wilmington, Delaware 19801,
County of New Castle,
Delaware.
Fax number:
Attention: Legal Counsel
THE AGENT
Signed, Sealed and Delivered )
by __________________________________ )
and __________________________________ )
as attorneys for and on behalf of )
ABN AMRO BANK N.V., SINGAPORE )
BRANCH )
in the presence of:- )
63, Chulia Street,
5th Floor,
Singapore 049514.
Fax number: 536 7816
Attention: Ms Sally Loh/Ms Patricia Teo
<PAGE> 27
25
A P P E N D I X 2
FORM OF HP GUARANTEE
DATED NOVEMBER, 1999
HEWLETT-PACKARD COMPANY
AS HP
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
-------------------------------------------------
HP GUARANTEE
-------------------------------------------------
ALLEN & GLEDHILL,
36, ROBINSON ROAD, #18-01,
CITY HOUSE,
SINGAPORE 068877.
<PAGE> 28
<PAGE> 29
26
C O N T E N T S
<TABLE>
<CAPTION>
CLAUSE HEADING PAGE
- ------ ------- ----
<S> <C> <C>
1. INTERPRETATION
2. UNDERTAKINGS BY HP
3. REPRESENTATIONS AND WARRANTIES
4. UNDERTAKINGS
5. PAYMENTS
6. NATURE OF RIGHTS AND OBLIGATIONS
7. EXPENSES
8. BENEFIT OF AGREEMENT
9. WAIVERS
10. COMMUNICATIONS
11. PARTIAL INVALIDITY
12. GOVERNING LAW AND JURISDICTION
</TABLE>
<PAGE> 30
27
T H I S G U A R A N T E E is made on November, 1999 B E T W E E N:-
(1) HEWLETT-PACKARD COMPANY ("HP"), a company incorporated in California with
its registered office at 3000, Hanover Street, MS 20BQ, Palo Alto, CA
94304, United States of America; and
(2) ABN AMRO BANK N.V., SINGAPORE BRANCH, a banking corporation incorporated in
the Netherlands and acting through its Singapore branch at 63, Chulia
Street, Singapore 049514, as agent for and on behalf of the Banks (in such
capacity, the "Agent", which expression shall include any of its successors
in such capacity).
W H E R E A S:-
(A) By a Credit Agreement (the Credit Agreement as amended by the First
Supplemental Agreement (as defined below) and the Second Supplemental Agreement
(as defined below), the "Credit Agreement") dated 12th March, 1998 made between
(1) Chartered Silicon Partners Pte Ltd (the "Borrower"), a company incorporated
in Singapore with its registered office at 60, Woodlands Industrial Park D,
Street 2, Singapore 738406, as borrower, (2) ABN AMRO Bank N.V., Singapore
Branch, Bayerische Landesbank Girozentrale, Singapore Branch, Citibank, N.A.,
Singapore Branch, Overseas Union Bank Limited and The Sumitomo Bank, Limited,
Singapore Branch, as arrangers, (3) the Guarantor Banks named therein (the
"Guarantor Banks"), as guarantor banks, (4) the Lending Banks named therein (the
"Lending Banks"), as lending banks, and (5) the Agent, as agent, the Guarantor
Banks agreed to grant to the Borrower a S$236,800,000 guarantee facility and the
Lending Banks agreed to grant to the Borrower a US$143,200,000 term loan
facility, upon the terms and subject to the conditions of the Credit Agreement.
(B) By a Shareholders Undertaking dated 1st July, 1998 made between (1) the
Borrower, as borrower, (2) the Shareholders named therein, as shareholders, and
(3) the Agent, as agent, as amended and restated by the First Supplemental
Shareholders Undertaking (as defined below) and the Second Supplemental
Shareholders Undertaking (as defined below) (the "Shareholders Undertaking"),
the Shareholders have agreed to give the undertakings therein contained to the
Agent and the Banks as security for the obligations of the Borrower under or in
connection with the Credit Agreement.
(C) HP (after giving due consideration to the terms and conditions of the
Financing Documents (as defined below) and satisfying itself that there are
reasonable grounds for believing that the entry into by it of this Guarantee
will benefit it) has agreed to enter into this Guarantee and give the
undertakings provided in this Guarantee.
I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) Definitions: In this Guarantee, except to the extent that the context
requires otherwise:-
"ATE" means Agilent Technologies Europe B.V., a company incorporated in the
Netherlands;
<PAGE> 31
28
"Financing Documents" means the Credit Agreement and the Security
Documents;
"First Supplemental Agreement" means the first supplemental agreement dated
14th December, 1998 between the parties to the Credit Agreement, being
supplemental to the Credit Agreement;
"First Supplemental Shareholders Undertaking" means the supplemental
shareholders' undertaking dated 16th December, 1998 made between the
parties to the Shareholders Undertaking;
"Second Supplemental Shareholders Undertaking" means the supplemental
shareholders' undertaking dated November, 1999 made between the parties
to the Shareholders Undertaking;
"Second Supplemental Agreement" means the second supplemental agreement
dated November, 1999 between the parties to the Credit Agreement, being
supplemental to the Credit Agreement as supplemented by the First
Supplemental Agreement; and
"Termination Date" means, in relation to HP, the date on which HP has
fulfilled all its obligations under Clause 2(A).
(B) Financing Documents: All terms and references used in this Guarantee and
which are defined or construed in the Financing Documents but are not defined or
construed in this Guarantee shall have the same meaning and construction in this
Guarantee. Any reference in this Guarantee to a Financing Document shall include
that Financing Document as amended, modified or supplemented from time to time
and any document which amends, modifies or supplements that Financing Document.
(C) This Guarantee: Except to the extent that the context otherwise requires,
any reference to "this Guarantee" includes this Guarantee as from time to time
amended, modified or supplemented and any document which is supplemental hereto.
(D) Headings and Clauses: The headings in this Guarantee are inserted for
convenience only and shall be ignored in construing this Guarantee. Unless the
context otherwise requires, words denoting the singular number only shall
include the plural and vice versa. References to a statute shall be deemed to be
references to that statute as from time to time amended or re-enacted. Save as
otherwise indicated, references to "Clauses" are to be construed as references
to the clauses of this Guarantee.
2. UNDERTAKINGS BY HP
(A) Guarantee: In consideration of the Banks agreeing to grant their respective
shares of the Facility to the Borrower and/or the Banks otherwise acting under
or in connection with the Financing Documents (copies of which HP acknowledges
receipt), HP hereby unconditionally and irrevocably guarantees to the Agent and
each of the Banks, as a continuing guarantee subject to Clause 2(C), the due and
punctual performance by ATE of all its obligations, commitments and undertakings
under or pursuant to the Shareholders Undertaking, including but not limited to,
the due and punctual payment by ATE of all sums whatsoever which are or at any
time may be or become due from or owing by ATE under the Shareholders
Undertaking, including without
<PAGE> 32
29
limitation, under Clause 2(A)(1), 2(A)(2) and/or 2(A)(3) of the Shareholders
Undertaking, and unconditionally and irrevocably undertakes and agrees that, if
for any reason ATE does not perform any of its obligations under the
Shareholders Undertaking (including the payment of any sums thereunder) by the
time, on the date, in the currency and otherwise in the manner specified in the
Shareholders Undertaking, HP will, on demand by the Agent or any of the Banks,
perform such obligation on behalf of ATE (including, without limitation, paying
on behalf of ATE, or ensuring the payment of, such sums to the Borrower (in the
case of any such sums due under Clause 2(A)(2) and/or Clause 2(A)(3) of the
Shareholders Undertaking) or undertaking on behalf of ATE, or ensuring the
undertaking of, the relevant expenditure (in the case of any such sums due under
Clause 2(A)(1) of the Shareholders Undertaking)).
(B) Obligations Unconditional: The obligations of HP under this Clause are
unconditional and absolute, irrespective of (1) any event, however fundamental,
outside the control of the Borrower or HP or any other person preventing the
Borrower from achieving Completion by the Scheduled Completion Date, (2) any
winding-up, liquidation or dissolution of the Borrower, (3) any Event of Default
or action taken by the Agent or any Bank under the Financing Documents or any
enforcement of any security constituted by any Financing Document, (4) whether
the Project or the business of the Borrower is being carried on by any receiver,
judicial manager or other person and (5) any other circumstances whatsoever.
(C) Termination: HP's obligations under sub-Clause (A) shall terminate on 31st
March, 2001 without prejudice to any obligation accrued before that date.
3. REPRESENTATIONS AND WARRANTIES
HP represents and warrants to and for the benefit of the Agent and each of
the Banks that:-
(1) Status: it is a company duly incorporated and validly existing under the
laws of the State of Delaware, and has the power and authority to own its
assets and to conduct the business which it conducts;
(2) Powers: it has the power to enter into, exercise its rights and perform and
comply with its obligations under this Guarantee;
(3) Authorisations and Consents: all action, conditions and things required to
be taken, fulfilled and done (including the obtaining of any necessary
consents) in order (a) to enable it lawfully to enter into, exercise its
rights and perform and comply with its obligations under this Guarantee,
(b) to ensure that those obligations are valid, legally binding and
enforceable, and (c) to make this Guarantee admissible in evidence in the
courts of Singapore and the State of Delaware have been taken, fulfilled
and done;
(4) Non-Violation of Laws: its entry into, exercise of its rights and/or
performance of or compliance with its obligations under this Guarantee do
not and will not violate, or exceed any power or restriction granted or
imposed by, (a) any law to which it is subject or (b) its constitutive
documents;
(5) Obligations Binding: its obligations under this Guarantee are valid,
binding
<PAGE> 33
30
and enforceable;
(6) Non-Violation of Other Agreements: its entry into, exercise of its rights
and/or performance of or compliance with its obligations under this
Guarantee do not and will not violate, to an extent or in a manner which
has or will have a material adverse effect on it, any agreement to which it
is a party or which is binding on it or its assets;
(7) No Material Adverse Change: there has been no material adverse change in
its financial condition or operations since the date of HP's last published
annual report;
(8) Litigation: no litigation, arbitration or administrative proceeding is
current or pending (a) to restrain the entry into, exercise of its rights
under and/or performance or enforcement of or compliance with its
obligations under this Guarantee or (b) which has or will have a material
adverse effect on it;
(9) Winding-up: no meeting has been convened for its winding-up or for the
appointment of a receiver, trustee, judicial manager or similar officer of
it, its assets or any of them, no such step is intended by it and, so far
as it is aware, no petition, application or the like is outstanding for its
winding-up or for the appointment of a receiver, trustee, judicial manager
or similar officer of it, its assets or any of them;
(10) No Default: as far as it is aware after having made all due and proper
enquiries, no Event of Default or Potential Event of Default has occurred,
and it is not in breach of or default under any agreement to an extent or
in a manner which has or will have a material adverse effect on it; and
(11) Repetition: each of the above representations and warranties will be
correct and complied with in all material respects at all times up to the
Termination Date as if repeated then by reference to the then existing
circumstances.
4. UNDERTAKINGS
HP undertakes that, at all times prior to the Termination Date:-
(1) it will, as soon as available and in any event within 180 days after the
end of each of its financial years (beginning with the current one),
deliver, or cause to be delivered, to the Agent enough copies for the Banks
(on the basis of one copy for each Bank) of its published annual report as
at the end of and for that financial year;
(2) Litigation: it will, as soon as reasonably practicable, deliver to the
Agent for distribution to the Banks details of any litigation, arbitration
or administrative proceeding which, if to its knowledge had been current or
pending at the date of this Guarantee, would have rendered the
representation and warranty in Clause 3(8) incorrect;
<PAGE> 34
31
(3) Other Information: it will, as soon as reasonably practicable, deliver to
the Agent for distribution to the Banks such other information relating to
its financial condition or business of it as the Agent (or any Bank through
the Agent) may from time to time reasonably require (except for information
of a proprietary nature or which is reasonably regarded by it as
confidential); and
(4) Further Assurance: it will from time to time on reasonable request by the
Agent acting on the instructions of the Majority Banks do or procure the
doing of all such acts and will execute or procure the execution of all
such documents as may be reasonably necessary for giving full effect to
this Guarantee or securing to the Agent and the Banks the full benefits of
all rights, powers and remedies conferred upon the Agent and the Banks in
this Guarantee.
5. PAYMENTS
(A) Taxes: (1) All sums payable by HP under this Guarantee shall be paid (1)
free of any restriction or condition, (2) free and clear of and (except to the
extent required by law) without any deduction or withholding for or on account
of any tax and (3) without deduction or withholding (except to the extent
required by law) on account of any other amount, whether by way of set-off or
otherwise.
(2) If HP or any other person (whether or not a party to, or on behalf
of a party to, this Guarantee) must at any time deduct or withhold any tax or
other amount from any sum paid or payable by, or received or receivable from, HP
under this Guarantee, HP shall pay such additional amount as is necessary to
ensure that the Agent or, as the case may be, the Bank to which that sum is due,
receives on the due date and retains (free from any liability other than tax on
its own overall net income) a net sum equal to what it would have received and
so retained had no such deduction or withholding been required or made.
(3) If HP or any other person (whether or not a party to, or on behalf
of a party to, this Guarantee) must at any time pay any tax or other amount on,
or calculated by reference to, any sum received or receivable by the Agent or,
as the case may be, any of the Banks from HP under this Guarantee (except for a
payment by the Agent or a Bank of tax on its own overall net income), HP shall
pay or procure the payment of that tax or other amount before any interest or
penalty becomes payable or, if that tax or other amount is payable and paid by
the Agent or any Bank, shall reimburse it on demand for the amount paid by it.
(4) Within 30 days after paying any sum from which it is required by
law to make any deduction or withholding, and within 30 days after the due date
of payment of any tax or other amount which it is required by paragraph (3)
above to pay, HP shall deliver to the Agent evidence reasonably satisfactory to
the Agent or, as the case may be, the relevant Bank of that deduction,
withholding or payment and (where remittance is required) of the remittance
thereof to the relevant taxing or other authority.
(5) As soon as HP is aware that any such deduction, withholding or
payment is required (or any change in any such requirement), HP shall notify the
Agent.
<PAGE> 35
32
(B) Goods and Services Tax: HP shall also pay to the Agent and each Bank on
demand, in addition to any amount payable by HP under this Guarantee, any goods
and services, value added or other similar tax payable in respect of that amount
(and any reference in this Guarantee to that amount shall be deemed to include
any such taxes payable in addition to it).
(C) Refund of Tax Credits: If:-
(1) HP makes a payment under sub-Clause (A)(2) or (3) (a "Tax Payment") in
respect of a payment to a Bank under this Guarantee; and
(2) that Bank determines in its absolute discretion that it has obtained a
refund of tax or obtained and used a credit against tax on its overall net
income (a "Tax Credit") which that Bank in its absolute discretion is able
to identify as attributable to that Tax Payment,
then, if in its absolute discretion it can do so without any adverse
consequences for that Bank, that Bank shall reimburse HP such amount as that
Bank in its absolute discretion determines to be such proportion of that Tax
Credit as will leave that Bank (after that reimbursement) in no better or worse
position in respect of its worldwide tax liabilities than it would have been in
if no Tax Payment had been required. A Bank shall have an absolute discretion as
to whether to claim any Tax Credit (and, if it does claim, the extent, order and
manner in which it does so) and whether any amount is due from it under this
sub-Clause (C) (and, if so, what amount and when). No Bank shall be obliged to
disclose any information regarding its tax affairs and computations.
(D) Currency Indemnity: (1) Any amount received or recovered by the Agent or any
Bank in respect of any sum expressed to be due to it from HP under or in
connection with this Guarantee in a currency (such currency being referred to as
the "Relevant Currency") other than the currency in which such sum is expressed
to be due under this Guarantee (such currency being referred to as the "Currency
of Account") whether as a result of, or of the enforcement of, a judgment or
order of a court or tribunal of any jurisdiction, in the winding-up of HP or
otherwise, shall only constitute a discharge to HP to the extent of the amount
in the Currency of Account which the recipient is able, in accordance with its
usual practice, to purchase with the amount of the Relevant Currency so received
or recovered on the date of that receipt or recovery (or, if it is not
practicable to make that purchase on that date, on the first date on which it is
practicable to do so).
(2) If that amount in the Currency of Account is less than the amount
of the Currency of Account due to the recipient under or in connection with this
Guarantee, HP shall indemnify it against any loss sustained by it as a result.
In any event, HP shall indemnify the recipient against the cost of making any
such purchase. For the purpose of this sub-Clause (D), it will be sufficient for
the recipient to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
(3) Each of the indemnities in this sub-Clause (D) constitutes a
separate and independent obligation from the other obligations in this
Guarantee, shall give rise to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by the Agent, any Arranger and/or
any Bank and shall continue in full force and effect despite any judgment,
order, claim or proof for a liquidated amount in respect of any sum due under
this Guarantee or any other judgment or order.
<PAGE> 36
33
6. NATURE OF RIGHTS AND OBLIGATIONS
(A) No Release: The obligations of HP under this Guarantee (excluding, for the
avoidance of doubt, any obligation of HP under this Guarantee which has been
discharged) shall not be discharged, impaired or otherwise affected by any act,
omission, matter or thing which, but for this sub-Clause (A), may operate to
release or otherwise exonerate HP from its obligations under this Guarantee in
whole or in part, including without limitation and whether or not known to it or
any other person:-
(1) any variation in or to the Project;
(2) any time, indulgence, concession waiver or consent at any time given by the
Agent and/or any of the Banks to the Borrower, ATE, HP or any other person;
(3) any amendment or supplement to any provision of any Financing Document or
any other agreement, security, guarantee or indemnity relating to the
Financing Documents;
(4) the making or the absence of any demand on the Borrower, HP or any other
person for payment;
(5) the enforcement or absence of enforcement of or release of any of the
Financing Documents or any other agreement, security, guarantee or
indemnity relating to the Financing Documents;
(6) the winding-up, insolvency, bankruptcy, amalgamation, reconstruction or
reorganisation of the Borrower, ATE, HP or any other person;
(7) the illegality, invalidity or unenforceability of or any defect in any
provision of any Financing Document or any other agreement, security,
guarantee or indemnity or any of the obligations of the Borrower, ATE, HP
or any other person thereunder, whether on the grounds of ultra vires, not
being in the interests of the Borrower, ATE, or any other person, not
having been duly authorised, executed or delivered by the Borrower, ATE or
any other person or for any reason whatsoever; or
(8) any other act, event or omission which but for this provision would or
might operate to impair or discharge the obligations of HP under this
Guarantee.
(B) Continuing Obligations: The obligations of HP under this Guarantee are
continuing obligations, will not be discharged by any intermediate payment and
will remain in full force and effect until the obligations under this Guarantee
have been fulfilled (for the avoidance of doubt, nothing in this sub-Clause (B)
shall affect any obligation of HP which has been discharged by the due and
proper performance by HP of such obligations).
(C) Reinstatement: (1) Any settlement or discharge between the Agent or any of
the Banks and HP shall be conditional upon no security or payment to the Agent
or such Bank by ATE
<PAGE> 37
34
or any other person being avoided or reduced by virtue of any provision or
enactment relating to bankruptcy, insolvency or winding-up for the time being in
force or by virtue of any obligation to give effect to any preference or
priority and the Agent or such Bank (as the case may be) shall be entitled to
recover the value or amount of any such security or payment from HP subsequently
as if such settlement or discharge had not occurred.
(2) Without prejudice to the provisions of paragraph (1), where any
discharge (whether in respect of the obligations of HP or any security for those
obligations or otherwise) is made in whole or in part or any arrangement is made
on the faith of any payment, security or other disposition which is avoided or
must be repaid on bankruptcy, insolvency or winding-up or otherwise without
limitation, the liability of HP under this Guarantee shall, unless the Agent and
the Banks agree otherwise, continue as if the discharge or arrangement, as the
case may be, had not occurred.
(D) Failure by HP: The failure of HP to perform or comply with any of its
obligations under this Guarantee shall not release HP of its obligations under
this Guarantee.
(E) Immediate Recourse: HP waives any right which it may have of first
requesting the Agent or any of the Banks to proceed against or enforce any other
rights or security or claim payment from the Borrower, ATE, HP or any other
person before claiming from HP under this Guarantee.
(F) Additional Security: This Agreement shall be in addition to and shall not in
any way be prejudiced by any other security now or hereafter held by the Agent
or any Bank as security for the obligations of the Borrower under the Credit
Agreement or the obligations of ATE under the Shareholders Undertaking.
7. EXPENSES
HP shall pay on demand all costs and expenses (including legal
expenses on a full indemnity basis) reasonably incurred by the Agent and/or any
of the Banks in protecting or enforcing any rights against it under this
Guarantee.
8. BENEFIT OF AGREEMENT
(A) HP: HP may not assign or transfer any of its rights, benefits or obligations
under this Guarantee.
(B) Agent/Banks: (1) Each of the Agent and the Banks may assign all or part of
its rights under this Guarantee without the consent of any party to any assignee
or transferee under the Credit Agreement. Any such assignee shall be entitled to
the full benefit of this Guarantee to the same extent as if it were an original
party in respect of the rights assigned to it.
(2) HP shall not be liable for any costs or expenses which may be
incurred in connection with any assignment or transfer of any of the rights of
the Agent or any of the Banks under this Guarantee.
(C) Disclosure of Information: The Agent or any of the Banks may disclose on a
confidential basis to any other party to the Financing Documents or any of its
other branches or its headquarters or to an actual or potential New Lending
Bank, assignee, sub-participant or the like
<PAGE> 38
35
such information about HP or any other person as it may think fit and may
disclose to such party such information about HP with the prior consent in
writing of HP (Provided that, at any time and from time to time after the making
of a declaration under Clause 17(B) of the Credit Agreement, (1) no such consent
will be required for any such disclosure and (2) the Agent or the relevant Bank
making any such disclosure shall, if practicable, consult with HP prior to
making any such disclosure and shall consider in good faith any request from HP
to the Agent or such Bank not to make any such disclosure or to delay making any
such disclosure).
(D) Limitation on Certain Obligations: If, at the time of any assignment or
transfer by a Bank, circumstances exist which would oblige HP to pay to the
assignee or transfer under Clause 5(A) any sum in excess of the sum (if any)
which it would have been obliged to pay to that Bank under that Clause in the
absence of that assignment or transfer, HP shall not be obliged to pay that
excess.
9. WAIVERS
No failure on the part of the Agent or any of the Banks to
exercise, and no delay on its part in exercising, any right or remedy under this
Guarantee will operate as a waiver thereof, nor will any single or partial
exercise of any right or remedy preclude any other or further exercise thereof
or the exercise of any other right or remedy. The rights and remedies provided
in this Guarantee are cumulative and not exclusive of any other rights or
remedies (whether provided by law or otherwise).
10. COMMUNICATIONS
(A) Addresses: Each communication under this Guarantee shall be made by fax,
telex or otherwise in writing. Each communication or document to be delivered to
any party under this Guarantee shall be sent to that party at the fax number,
telex number or address, and marked for the attention of the person (if any),
from time to time designated by that party to the Agent (or, in the case of the
Agent, by it to each other party) for the purpose of this Guarantee. The initial
fax number, telex number, address and person (if any) so designated by each
party are set out against its name at the end of this Guarantee.
(B) Deemed Delivery: Any communication under this Guarantee shall be deemed to
have been received (if sent by fax or telex) on the day of despatch or (in any
other case) when left at the address required by sub-Clause (A) above or within
five days after being sent by prepaid post (by airmail if to another country)
addressed to it at that address.
11. PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any
provision of this Guarantee under the law of any jurisdiction shall not affect
its legality, validity or enforceability under the law of any other jurisdiction
nor the legality, validity or enforceability of any other provision.
12. GOVERNING LAW AND JURISDICTION
(A) Governing Law: This Agreement shall be governed by, and construed in
accordance with, the laws of Singapore.
(B) Singapore Courts: For the benefit of the Agent and each Bank, all the
parties
<PAGE> 39
36
irrevocably agree that the courts of Singapore are to have jurisdiction to
settle any disputes which may arise out of or in connection with this Guarantee
and that, accordingly, any legal action or proceedings arising out of or in
connection with this Guarantee ("Proceedings") may be brought in those courts
and each of the Borrower and HP irrevocably submits to the jurisdiction of those
courts.
(C) Other Competent Jurisdiction: Nothing in this Clause shall limit the right
of the Agent and/or any Bank to take Proceedings against HP in any other court
of competent jurisdiction nor shall the taking of Proceedings in one or more
jurisdictions preclude the Agent and/or any Bank from taking Proceedings in any
other jurisdiction, whether concurrently or not.
(D) Venue: HP irrevocably waives any objection which it may at any time have to
the laying of the venue of any Proceedings in any court referred to in this
Clause and any claim that any such Proceedings have been brought in an
inconvenient forum.
(E) Service of Process: HP irrevocably appoints Hewlett-Packard Singapore
(Private) Limited (now of 450, Alexandra Road, Singapore 119960, attention:
Legal Counsel) to receive, for it and on its behalf, service of process in any
Proceedings in Singapore. Such service shall be deemed completed on delivery to
the process agent (whether or not it is forwarded to and received by HP). If for
any reason the process agent ceases to be able to act as such or no longer has
an address in Singapore, HP irrevocably agrees to appoint a substitute process
agent acceptable to the Agent, and to deliver to the Agent a copy of the new
agent's acceptance of that appointment, within 30 days. Nothing shall affect the
right to serve process in any other manner permitted by law.
(F) Consent to Enforcement, etc.: HP irrevocably and generally consents in
respect of any Proceedings anywhere to the giving of any relief or the issue of
any process in connection with those Proceedings including, without limitation,
the making, enforcement or execution against any assets whatsoever (irrespective
of their use or intended use) of any order or judgment which may be made or
given in those Proceedings.
(G) Waiver of Immunity: HP irrevocably agrees that, should the Agent or any Bank
take any Proceedings anywhere (whether for an injunction, specific performance,
damages or otherwise), no immunity (to the extent that it may at any time exist,
whether on the grounds of sovereignty or otherwise) from those Proceedings, from
attachment (whether in aid of execution, before judgment or otherwise) of its
assets or from execution of judgment shall be claimed by it or on its behalf or
with respect to its assets, any such immunity being irrevocably waived. HP
irrevocably agrees that it and its assets are, and shall be, subject to such
Proceedings, attachment or execution in respect of its obligations under this
Guarantee.
<PAGE> 40
37
I N W I T N E S S W H E R E O F this Guarantee has been
entered into on the date stated at the beginning.
HP
Signed, Sealed and Delivered )
by _________________________________ )
as attorney for and on behalf of )
HEWLETT-PACKARD COMPANY )
in the presence of:- )
3000, Hanover Street,
MS 20BQ,
Palo Alto, CA 94304,
United States of America.
Fax number:
Attention: General Counsel
THE AGENT
Signed, Sealed and Delivered )
by __________________________________ )
and __________________________________ )
as attorneys for and on behalf of )
ABN AMRO BANK N.V., SINGAPORE )
BRANCH )
in the presence of:- )
63, Chulia Street,
5th Floor,
Singapore 049514.
Fax number: 536 7816
Attention: Ms Sally Loh/Ms Patricia Teo
<PAGE> 41
38
A P P E N D I X 3
FORM OF SECOND SUPPLEMENTAL
SHAREHOLDERS UNDERTAKING
DATED ____ NOVEMBER, 1999
CHARTERED SILICON PARTNERS PTE LTD
AS BORROWER
AGILENT TECHNOLOGIES EUROPE B.V.
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
EDB INVESTMENTS PTE LTD
AS SHAREHOLDERS
HEWLETT-PACKARD EUROPE B.V.
AS RETIRING SHAREHOLDER
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
-------------------------------------------------
SECOND SUPPLEMENTAL
SHAREHOLDERS UNDERTAKING
(RELATING TO THE SHAREHOLDERS UNDERTAKING
DATED 1ST JULY, 1998 AS SUPPLEMENTED BY
THE FIRST SUPPLEMENTAL SHAREHOLDERS UNDERTAKING
DATED 16TH DECEMBER, 1998)
-------------------------------------------------
ALLEN & GLEDHILL,
36, ROBINSON ROAD, #18-01,
CITY HOUSE,
SINGAPORE 068877.
<PAGE> 42
39
C O N T E N T S
<TABLE>
<CAPTION>
CLAUSE HEADING PAGE
- ----- ------- -----
<S> <C> <C>
1. INTERPRETATION
2. AMENDMENTS TO AND RESTATEMENT OF THE
SHAREHOLDERS UNDERTAKING
3. DISCHARGE
4. REPRESENTATIONS AND WARRANTIES
5. EXPENSES AND STAMP DUTY
6. GOVERNING LAW AND JURISDICTION
SCHEDULE - FORM OF AMENDED AND RESTATED
SHAREHOLDERS UNDERTAKING
</TABLE>
<PAGE> 43
40
T H I S S E C O N D S U P P L E M E N T A L
S H A R E H O L D E R S U N D E R T A K I N G is made on November, 1999
B E T W E E N:-
(1) CHARTERED SILICON PARTNERS PTE LTD (the "Borrower");
(2) AGILENT TECHNOLOGIES EUROPE B.V. ("ATE"), CHARTERED SEMICONDUCTOR
MANUFACTURING LTD ("CSM") and EDB INVESTMENTS PTE LTD ("EDBI");
(3) HEWLETT-PACKARD EUROPE B.V. (the "Retiring Shareholder"); and
(4) ABN AMRO BANK N.V., SINGAPORE BRANCH, as agent for and on behalf of the
Banks (in such capacity, the "Agent", which expression shall include any of
its successors in such capacity),
and amends a Shareholders Undertaking (the "Shareholders Undertaking") dated 1st
July, 1998 made between (1) the Borrower, as borrower, (2) CSM, EDBI and the
Retiring Shareholder (together, the "Existing Shareholders"), as shareholders,
and (3) the Agent, as agent, as supplemented by a first supplemental
shareholders undertaking (the "First Supplemental Undertaking") dated 16th
December, 1998 made between the parties to the Shareholders Undertaking.
W H E R E A S:-
(A) Pursuant to the Shareholders Undertaking, the Existing Shareholders agreed
to undertake certain obligations in favour of the Agent and the Banks, upon the
terms and subject to the conditions of the Shareholders Undertaking.
(B) Pursuant to the First Supplemental Undertaking, the Borrower, the Existing
Shareholders, the Arrangers, the Guarantor Banks, the Lending Banks and the
Agent have agreed to amend the Shareholders Undertaking, on the terms and
subject to the conditions of the First Supplemental Undertaking.
(C) The Borrower, ATE, CSM, EDBI and the Retiring Shareholder wish to amend the
Shareholders Undertaking (as supplemented by the First Supplemental Undertaking)
to, inter alia, replace the Retiring Shareholder with ATE, and the Banks have
agreed, on the terms and subject to the conditions set out in this Supplemental
Undertaking, to amend and restate the Shareholders Undertaking (as supplemented
by the First Supplemental Undertaking) as set out in this Supplemental
Undertaking.
I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) Definitions: In this Supplemental Undertaking, except to the extent that the
context requires otherwise:-
"Credit Agreement" means the Credit Agreement dated 12th March, 1998 made
between (1) the Borrower, as borrower, (2) the Arrangers named therein, as
arrangers, (3) the Guarantor Banks named therein, as guarantor banks, (4)
the
<PAGE> 44
41
Lending Banks named therein, as lending banks, and (5) the Agent, as
agent, as supplemented by the first supplemental agreement dated 14th
December 1998 made between the parties to the Credit Agreement and as
further supplemented by the Second Supplemental Agreement;
"Restated Shareholders Undertaking" means the Shareholders Undertaking as
amended and restated on the terms of Schedule 1;
"Second Supplemental Agreement" means the second supplemental agreement
dated ____ November, 1999 between the parties to the Credit Agreement,
being supplemental to the Credit Agreement as supplemented by the First
Supplemental Agreement; and
"Shareholders" means ATE, CSM and EDBI (and includes their respective
successors and permitted assignees and transferees).
(B) Construction of Certain References: All terms and references used in the
Shareholders Undertaking and which are defined or construed in the Shareholders
Undertaking but are not defined or construed in this Supplemental Undertaking
shall have the same meaning and construction in this Supplemental Undertaking.
All references in this Supplemental Undertaking to the Shareholders Undertaking
shall be to the Shareholders Undertaking as amended, supplemented or modified by
the First Supplemental Undertaking.
(C) Miscellaneous: The headings in this Supplemental Undertaking are inserted
for convenience only and shall be ignored in construing this Supplemental
Undertaking. Unless otherwise stated, references to "Clauses" and "Schedule" are
to be construed as references to the clauses of, and the schedule to, this
Supplemental Undertaking.
2. AMENDMENTS TO AND RESTATEMENT OF THE SHAREHOLDERS UNDERTAKING
(A) Supplemental Undertaking: This Supplemental Undertaking is and shall be
construed as supplemental to the Shareholders Undertaking and every Clause
thereof shall continue in full force and effect and be binding on the parties
thereto save as expressly amended and supplemented by this Supplemental
Undertaking. In addition, except as expressly provided for herein, this
Supplemental Undertaking shall not affect any rights or interests of the Agent
and the Banks whatsoever existing immediately prior to the Effective Date (as
defined in the Second Supplemental Agreement).
(B) Amendment and Restatement of Shareholders Undertaking: The parties agree
that the Shareholders Undertaking shall, with effect on and from the Effective
Date, be amended and restated in the form of the Restated Shareholders
Undertaking so that the rights and obligations of the parties to this
Supplemental Undertaking under the Shareholders Undertaking shall, on and after
the Effective Date, be governed by, and construed in accordance with, the
Restated Shareholders Undertaking.
3. DISCHARGE
<PAGE> 45
42
The parties agree that, on and from the Effective Date, the
Retiring Shareholder shall be discharged from its obligations under the
Shareholders Undertaking without prejudice to any obligations accrued before
that date.
4. REPRESENTATIONS AND WARRANTIES
Each of the Borrower and the Shareholders severally represents
and warrants to and for the benefit of each of the other parties to this
Supplemental Undertaking that:-
(1) all action, conditions and things required to be
taken, fulfilled and done (including the obtaining of
any necessary consents) in order (a) to enable it
lawfully to enter into, exercise its rights and
perform and comply with its obligations under this
Supplemental Undertaking and (b) to make this
Supplemental Undertaking admissible in evidence in
the courts of Singapore and the Netherlands, have
been taken, fulfilled and done;
(2) its entry into, exercise of its rights and/or
performance of or compliance with its obligations
under this Supplemental Undertaking and the Restated
Shareholders Undertaking, do not and will not violate
(a) any law to which it is subject, (b) any provision
of its constitutive documents or (c) to an extent or
in a manner which has or will have a material adverse
effect on it, any agreement to which it is a party or
which is binding on it or its assets; and
(3) this Supplemental Undertaking and the Restated
Shareholders Undertaking, constitute its valid,
binding and enforceable obligations in accordance
with their respective terms.
5. EXPENSES AND STAMP DUTY
The Borrower shall pay:-
(1) on demand, all costs and expenses (including legal
fees and all goods and services, value added and
other duties or taxes payable on such costs and
expenses) reasonably incurred by the Agent in
connection with the preparation, negotiation and
entry into of this Supplemental Undertaking and the
Restated Shareholders Undertaking; and
(2) promptly, and in any event before any penalty becomes
payable, any stamp, goods and services, value added,
documentary or similar duty or tax payable in
connection with the entry into, performance,
enforcement and admissibility in evidence of any of
this Supplemental Undertaking and the Restated
Shareholders Undertaking, and shall indemnify the
Agent and the Banks against any liability with
respect to or resulting from any delay in paying or
omission to pay any such tax.
6. GOVERNING LAW AND JURISDICTION
<PAGE> 46
43
(A) Governing Law: This Supplemental Undertaking shall be governed by, and
construed in accordance with, the laws of Singapore.
(B) Singapore Courts: For the benefit of the Agent and each Bank, all the
parties irrevocably agree that the courts of Singapore are to have jurisdiction
to settle any disputes which may arise out of or in connection with this
Supplemental Undertaking and that, accordingly, any legal action or proceedings
arising out of or in connection with this Supplemental Undertaking
("Proceedings") may be brought in those courts and each of the Borrower and the
Shareholders irrevocably submits to the jurisdiction of those courts.
(C) Other Competent Jurisdiction: Nothing in this Clause shall limit the right
of the Agent and/or any Bank to take Proceedings against the Borrower or any of
the Shareholders in any other court of competent jurisdiction nor shall the
taking of Proceedings in one or more jurisdictions preclude the Agent and/or any
Bank from taking Proceedings in any other jurisdiction, whether concurrently or
not.
(D) Venue: Each of the Borrower and the Shareholders irrevocably waives any
objection which it may at any time have to stipulating the venue of any
Proceedings in any court referred to in this Clause and any claim that any such
Proceedings have been brought in an inconvenient forum.
(E) Service of Process: (1) ATE irrevocably appoints Agilent Technologies
Singapore Pte Ltd (now of 438B, Alexandra Road, #05-05, #05-07/12, Alexandra
Technopark B, Singapore 119968, Attention: Legal Counsel) to receive, for it and
on its behalf, service of process in any Proceedings in Singapore. Such service
shall be deemed completed on delivery to the process agent (whether or not it is
forwarded to and received by ATE). If for any reason the process agent ceases to
be able to act as such or no longer has an address in Singapore, ATE irrevocably
agrees to appoint a substitute process agent acceptable to the Agent, and to
deliver to the Agent a copy of the new agent's acceptance of that appointment,
within 30 days. Nothing shall affect the right to serve process in any other
manner permitted by law.
(F) Consent to Enforcement, etc.: Each of the Borrower and the Shareholders
irrevocably and generally consents in respect of any Proceedings anywhere to the
giving of any relief or the issue of any process in connection with those
Proceedings including, without limitation, the making, enforcement or execution
against any assets whatsoever (irrespective of their use or intended use) of any
order or judgment which may be made or given in those Proceedings.
(G) Waiver of Immunity: Each of the Borrower and the Shareholders irrevocably
agrees that, should the Agent or any Bank take any Proceedings anywhere (whether
for an injunction, specific performance, damages or otherwise), no immunity (to
the extent that it may at any time exist, whether on the grounds of sovereignty
or otherwise) from those Proceedings, from attachment (whether in aid of
execution, before judgment or otherwise) of its assets or from execution of
judgment shall be claimed by it or on its behalf or with respect to its assets,
any such immunity being irrevocably waived. Each of the Borrower and the
Shareholders irrevocably agrees that it and its assets are, and shall be,
subject to such Proceedings, attachment or execution in respect of its
obligations under this Supplemental Undertaking.
<PAGE> 47
44
S C H E D U L E
FORM OF AMENDED AND RESTATED
SHAREHOLDERS UNDERTAKING
ORIGINALLY DATED 1ST JULY, 1998
AS AMENDED ON 16TH DECEMBER, 1998 BY
A FIRST SUPPLEMENTAL SHAREHOLDERS UNDERTAKING
AND ON NOVEMBER, 1999
BY A SECOND SUPPLEMENTAL SHAREHOLDERS UNDERTAKING
CHARTERED SILICON PARTNERS PTE LTD
AS BORROWER
AGILENT TECHNOLOGIES EUROPE B.V.
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
EDB INVESTMENTS PTE LTD
AS SHAREHOLDERS
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
-----------------------------------------------
AMENDED AND RESTATED
SHAREHOLDERS UNDERTAKING
WITH EFFECT FROM THE EFFECTIVE DATE
(AS DEFINED) UNDER THE SECOND SUPPLEMENTAL SHAREHOLDERS
UNDERTAKING DATED ____ NOVEMBER, 1999
------------------------------------------------
ALLEN & GLEDHILL,
36, ROBINSON ROAD, #18-01,
CITY HOUSE,
SINGAPORE 068877.
<PAGE> 48
45
C O N T E N T S
<TABLE>
<CAPTION>
CLAUSE HEADING PAGE
- ------ ------- ----
<S> <C> <C>
1. INTERPRETATION
2. UNDERTAKINGS BY SHAREHOLDERS
3. SUBORDINATION
4. AGREEMENT BY BORROWER AND SHAREHOLDERS
5. REPRESENTATIONS AND WARRANTIES
6. UNDERTAKINGS
7. PAYMENTS
8. NATURE OF RIGHTS AND OBLIGATIONS
9. EXPENSES
10. BENEFIT OF AGREEMENT
11. WAIVERS
12. COMMUNICATIONS
13. PARTIAL INVALIDITY
14. GOVERNING LAW AND JURISDICTION
APPENDIX - INFORMATION PACK
</TABLE>
<PAGE> 49
46
T H I S A G R E E M E N T is originally
made on 1st July, 1998 B E T W E E N:-
(1) CHARTERED SILICON PARTNERS PTE LTD (the "Borrower");
(2) AGILENT TECHNOLOGIES EUROPE B.V. ("ATE"), CHARTERED SEMICONDUCTOR
MANUFACTURING LTD ("CSM") and EDB INVESTMENTS PTE LTD ("EDBI"); and
(3) ABN AMRO BANK N.V., SINGAPORE BRANCH, as agent for and on behalf of the
Banks defined below (in such capacity, the "Agent", which expression shall
include any of its successors in such capacity).
W H E R E A S:-
(A) By a Credit Agreement (the Credit Agreement as amended by the First
Supplemental Agreement (as defined below) and the Second Supplemental Agreement
(as defined below), the "Credit Agreement") dated 12th March, 1998 made between
(1) the Borrower, as borrower, (2) ABN AMRO Bank N.V., Singapore Branch,
Bayerische Landesbank Girozentrale, Singapore Branch, Citibank, N.A., Singapore
Branch, Overseas Union Bank Limited and The Sumitomo Bank, Limited, Singapore
Branch, as arrangers, (3) the Guarantor Banks named therein (the "Guarantor
Banks"), as guarantor banks, (4) the Lending Banks named therein (the "Lending
Banks"), as lending banks, and (5) the Agent, as agent, the Guarantor Banks
agreed to grant to the Borrower a S$236,800,000 guarantee facility and the
Lending Banks agreed to grant to the Borrower a US$143,200,000 term loan
facility, upon the terms and subject to the conditions of the Credit Agreement.
(B) (1) CSM is the legal and beneficial owner of 51 per cent. of the issued
shares in the capital of the Borrower.
(2) EDBI is the legal and beneficial owner of 19 per cent. of the issued
shares in the capital of the Borrower.
(3) On 9th November, 1999, ATE will be 100 per cent. legally and
beneficially owned by Hewlett-Packard World Trade, Inc ("HPWT") which is in turn
100 per cent. legally and beneficially owned by Hewlett-Packard Company ("HP").
On 11th November, 1999, ATE will be 100 per cent. legally and beneficially owned
by Agilent Technologies World Trade, Inc. ("ATWT") which will be 100 per cent.
legally and beneficially owned by HPWT and pursuant to a transfer on the same
day ATWT will then be 100 per cent. owned by HP. On 15th November, 1999, ATE
will be 100 per cent. legally and beneficially owned by ATWT, which will be 100
per cent. owned by Agilent Technologies, Inc. ("ATI") which in turn will be
owned 100 per cent. legally and beneficially by HP, thereafter HP will own
between 80 to 85 per cent. of ATI and cease to own any ATI share by May 2000.
ATE is or will be the legal and beneficial owner of 30 per cent.
of the issued shares in the capital of the Borrower.
(C) Each of the Shareholders (as defined below) (after giving due consideration
to the terms and conditions of the Credit Agreement and satisfying itself that
there are reasonable grounds for believing that the entry into by it of this
Agreement will benefit it) has agreed to enter into this Agreement and give the
undertakings provided in this Agreement in consideration of the Guarantor Banks
making available to the Borrower the guarantee facility referred to in Recital
(A)
<PAGE> 50
47
above and the Lending Banks making available to the Borrower the term loan
facility referred to in Recital (A) above.
I T I S A G R E E D as follows:-
1. INTERPRETATION
(A) Definitions: In this Agreement, except to the extent that the context
requires otherwise:-
"Agent" includes its successors in title and assigns and any
company with which it may amalgamate and all other persons for
the time being the agent for the Banks under this Agreement;
"ATI Entities" means ATI or any corporation which is at
least 99 per cent. owned (whether directly or indirectly) by
ATI;
"Banks" means the Guarantor Banks and the Lending Banks (and
includes their respective successors and assigns);
"Completion" means the physical completion of the Plant (which
shall be evidenced by the grant of the temporary occupation
permit for the Plant pursuant to the Building Control Act,
Chapter 29 of Singapore) and the commencement of commercial
production by the Plant (which shall be the date on which the
Plant achieves a production rate of an aggregate of 2,000
wafers start per month);
"Discharge Date" means the date on which the Senior
Indebtedness has been discharged in full and on which the
Borrower and the Shareholders cease to be under any liability
to the Agent and the Banks under or in connection with the
Financing Documents;
"Equity Commitment Percentage" means:-
(1) in relation to CSM, 51/100;
(2) in relation to EDBI, 19/100; and
(3) in relation to ATE, 30/100;
"Excluded Transaction" means any genuine and good faith
commercial transaction entered into between the Borrower and
any one or more of the Shareholders which is not primarily
financial in nature and is contemplated under the Joint
Venture Agreement;
"First Supplemental Agreement" means the first supplemental
agreement dated 14th December, 1998 between the parties to the
Credit Agreement, being supplemental to the Credit Agreement;
"Information Pack" means the HP/Agilent Re-structuring
Information Pack, substantially in the form of the Appendix;
<PAGE> 51
48
"Joint Venture Agreement" has the meaning ascribed to it in
Clause 1(A) of the Credit Agreement;
"Scheduled Completion Date" means 31st December, 2000;
"Second Supplemental Agreement" means the second supplemental
agreement dated ____ November, 1999 between the parties to the
Credit Agreement, being supplemental to the Credit Agreement
as supplemented by the First Supplemental Agreement;
"Senior Indebtedness" means all sums (whether principal,
interest, fee or otherwise) which are or at any time may be or
become due from or owing by the Borrower to the Agent and/or
the Banks (or any of them), whether actually or contingently,
under or in connection with, or which the Borrower has
covenanted to pay or discharge under or pursuant to, any of
the Financing Documents;
"Shareholder Funding" means:-
(1) subscription moneys paid by any Shareholder for
shares in the Borrower for which that Shareholder has
subscribed (and which have not been returned to that
Shareholder); or
(2) loans made by any Shareholder to the Borrower which
are subordinated to the Senior Indebtedness in
accordance with this Agreement;
"Shareholders" means ATE, CSM and EDBI (and includes their
respective successors and permitted assignees and
transferees);
"Subordinated Indebtedness" means all sums made or to be made
available by the Shareholders (or any of them) to the Borrower
under or in connection with this Agreement (including, without
limitation, under Clause 2);
"Termination Date" means, in relation to a Shareholder, the
earlier of (1) the date on which that Shareholder has
fulfilled all its obligations under Clause 2(A) and (2) the
date on which all Shareholder Funding provided by it, if any,
in accordance with this Agreement has been converted into
shares in the capital of the Borrower; and
"Total Indebtedness" means, at any particular time, all sums
(whether principal, interest, fee or otherwise) which are then
due from or owing by the Borrower to the Agent and the Banks,
whether actually or contingently, under or in connection with,
any of the Financing Documents to which the Borrower is a
party.
(B) Construction: All terms and references used in this Agreement and which are
defined or construed in the Credit Agreement but are not defined or construed in
this Agreement shall have the same meaning and construction in this Agreement.
The provisions of Clause 1(C) of the Credit Agreement shall apply to this
Agreement as though they are set out in full in this Agreement (mutatis
mutandis) except that references to the Credit Agreement are to be construed
<PAGE> 52
49
as references to this Agreement. All references in this Agreement to a Financing
Document include that Financing Document as amended, modified or supplemented
from time to time and any document which amends, modifies or supplements that
Financing Document.
(C) Miscellaneous: The headings in this Agreement are inserted for convenience
only and shall be ignored in construing this Agreement. Unless the context
otherwise requires, words denoting the singular number only shall include the
plural and vice versa. References to "Clauses" are to be construed as references
to the clauses of this Agreement. Any reference to a sub-Clause or a paragraph
is to a sub-Clause or paragraph of the Clause in which such reference appears.
2. UNDERTAKINGS BY SHAREHOLDERS
(A) Shareholders Support: In consideration of the Guarantor Banks agreeing, at
the request of the Shareholders, to make available to the Borrower the guarantee
facility referred to in Recital (A) above and the Lending Banks agreeing, at the
request of the Shareholders, to make available to the Borrower the term loan
facility referred to in Recital (A) above and/or the Banks (or any of them)
acting under or in connection with the Credit Agreement:-
(1) Completion Guarantee: (a) subject to sub-paragraph
(c) below, (i) each Shareholder agrees to procure
that the Borrower will not abandon the Project and to
procure that Completion is achieved by not later than
the Scheduled Completion Date and (ii) each
Shareholder shall indemnify each Bank and keep each
Bank indemnified against any losses, damages,
liabilities, costs and expenses (including, without
limitation, legal costs on a full indemnity basis)
suffered by that Bank if Completion is not achieved
by the Scheduled Completion Date and which would not
have been suffered if Completion had been so
achieved;
(b) each Shareholder agrees to undertake such
expenditures as are required in order to ensure its
compliance with the provisions of sub-paragraph (a)
above and agrees to take all steps necessary to
ensure that Completion is achieved by not later than
the Scheduled Completion Date (provided that, without
prejudice to the obligations of the Shareholders
under sub-paragraph (a)(ii) above or any other
provision of this Agreement, the aggregate amount of
the expenditures by the Shareholders under
sub-paragraphs (a)(i) and (b) at any time shall not
exceed the difference between S$720,000,000 and the
aggregate amount of Shareholding Funding provided by
the Shareholders immediately prior to that time); and
(c) any payment obligation of a Shareholder arising
under sub-paragraph (a) or (b) above shall be limited
to that Shareholder's Equity Commitment Percentage of
the total amount payable by the Shareholders provided
always that the maximum aggregate liability of the
Shareholders at any time under sub-paragraph (a)(ii)
above shall not exceed the Total Indebtedness at that
time;
(2) Equity Support: if, on 31st December, 2001, the ratio
of the Borrowings of the Borrower to its Net Worth is
in excess of 1:1, each Shareholder shall
<PAGE> 53
50
(without demand by the Borrower, the Agent or any Bank)
severally provide Shareholder Funding to the Borrower within
14 days after that date in an amount equal to its Equity
Commitment Percentage of the difference between (a)
S$720,000,000 and (b) the aggregate amount of Shareholder
Funding immediately prior to the provision of Shareholder
Funding by that Shareholder on that date; and
(3) DSCR: if, on any Calculation Date, there is a breach by the
Borrower of its obligations under Clause 16(16)(b) or Clause
16(16)(c) of the Credit Agreement, each Shareholder shall
(without demand by the Borrower, the Agent or any Bank)
severally provide Shareholder Funding to the Borrower on
that Calculation Date in an amount equal to its Equity
Commitment Percentage of the lower of (a) the amount (as
determined by the Agent) to enable the Borrower to meet any
shortfall in its ability to meet all payments referred to in
component "B" of the definition of DSCR falling due during
the next succeeding Calculation Period commencing on that
Calculation Date and (b) the difference between (i)
S$720,000,000 and (ii) the aggregate amount of Shareholder
Funding immediately prior to the provision of Shareholder
Funding by that Shareholder on that Calculation Date.
(B) Obligations Unconditional: The obligations of the Shareholders under this
Clause are unconditional and absolute, irrespective of (1) any event, however
fundamental, outside the control of the Borrower or any Shareholder or any other
person preventing the Borrower from achieving Completion by the Scheduled
Completion Date, (2) any winding-up, liquidation or dissolution of the Borrower,
(3) any Event of Default or action taken by the Agent or any Bank under the
Financing Documents or any enforcement of any security constituted by any
Financing Document, (4) whether the Project or the business of the Borrower is
being carried on by any receiver, judicial manager or other person and (5) any
other circumstances whatsoever.
(C) Subscription Procedures: (1) The Borrower and each Shareholder shall do all
such things as may be necessary on their part for the provision of Shareholder
Funding required pursuant to this Agreement.
(2) If for any reason whatsoever (including, without limitation, the
winding-up, liquidation or dissolution of the Borrower or failure of the
Borrower to issue shares or to accept payment), a Shareholder does not or cannot
provide Shareholder Funding, that Shareholder will nevertheless, at such times
as are specified in this Clause, pay to the Borrower the amount it would
otherwise have been obliged to pay by way of Shareholder Funding, which shall be
deemed to discharge its obligation to provide that Shareholder Funding.
(3) If a Shareholder makes a payment under paragraph (2), the Borrower
will be liable (on the same terms and conditions) to that Shareholder for the
amount of the payment as if it had constituted Shareholder Funding by way of
subscription moneys for shares or subordinated loans (as appropriate).
(D) Subordinated Loans: If the Shareholders' obligations under this Clause are
fulfilled by means of loans to the Borrower (whether from any of or all the
Shareholders or from some other party), each of the Borrower and the
Shareholders agrees that such loans shall:-
<PAGE> 54
51
(1) be unsecured;
(2) not be subject to any payment of interest until after
the Discharge Date (although interest may accrue on
it prior to the Discharge Date); and
(3) be subordinated to the Senior Indebtedness in the
manner set out in this Agreement (Provided that,
notwithstanding anything to the contrary contained in
this Agreement, the aggregate amount of such loans
which shall be subordinated to the Senior
Indebtedness in the manner set out in this Agreement
shall not exceed the difference between S$720,000,000
and the aggregate amount of Shareholding Funding
provided by the Shareholders by way of subscription
moneys for shares).
3. SUBORDINATION
(A) Subordination: The Shareholders and the Borrower hereby agree with and
undertake to the Agent and each of the Banks that, notwithstanding anything to
the contrary contained in any agreement or other document constituting or
evidencing the Subordinated Indebtedness, before the Discharge Date the
Subordinated Indebtedness and the rights and claims of the Shareholders in
relation to the Subordinated Indebtedness are subordinated to the Senior
Indebtedness and the respective rights and claims of the Banks in relation to
the Senior Indebtedness and accordingly, subject as provided in this Agreement,
payments of any amount of the Subordinated Indebtedness (whether in the event of
the winding-up, liquidation or dissolution of the Borrower or otherwise) are
conditional upon all of the Senior Indebtedness having first been fully
satisfied and discharged and no payment of any amount of the Subordinated
Indebtedness which, but for this Agreement, would otherwise fall due for payment
will fall so due, and instead such payment will fall due only if and when the
Senior Indebtedness has been fully satisfied and discharged and, if the
Subordinated Indebtedness or any part thereof is paid by or on behalf of the
Borrower to any Shareholder, that payment shall be forthwith paid over by that
Shareholder to the Agent.
(B) Turnover: Without prejudice to the provisions of sub-Clause (A) above, if
any amount of Subordinated Indebtedness is discharged or purported to be
discharged by payment, repayment, prepayment, set-off or in any other manner in
contravention of sub-Clause (A) above or Clause 4 (and, for the avoidance of
doubt, any payment of consideration, discount or benefit given or credit terms
granted under any of the Excluded Transactions shall be deemed not to be a
discharge or purported discharge of any part of the Subordinated Indebtedness),
the relevant Shareholder shall:-
(1) (if the Shareholder actually receives the amount
discharged or purported to be discharged) immediately
pay it to the Agent for application towards the
Senior Indebtedness; and
(2) (if the Shareholder does not, as a result of
discharge by set-off or otherwise, actually receive
the amount discharged or purported to be discharged)
pay to the Agent an amount equal to that discharged
or purported to be discharged.
(C) Application: Any amount received by the Agent from any of the Shareholders,
or any person on its behalf, under sub-Clause (A) or (B) above shall be applied
in the following
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52
manner and order:-
(1) first, in or towards payment of any costs, charges
and expenses incurred by the Agent then due and
payable under this Agreement and the other Financing
Documents;
(2) secondly, in or towards payment of the Senior
Indebtedness (and in the event that such sums are
insufficient to satisfy in full the Senior
Indebtedness, such sums shall be paid to the Banks in
proportion to their respective shares of the Senior
Indebtedness at the time of payment); and
(3) thirdly, in payment of any surplus to that
Shareholder or any other person lawfully entitled
thereto.
4. AGREEMENT BY BORROWER AND SHAREHOLDERS
(A) By Borrower: The Borrower agrees and undertakes that prior to the Discharge
Date, it shall not, without the prior consent in writing of the Agent and the
Banks:-
(1) make any loans or advances, whether directly or
indirectly, to any of the Shareholders or provide any
guarantee, indemnity or security for or in connection
with any indebtedness or liabilities of any of the
Shareholders or otherwise enter into any transactions
with any of the Shareholders other than (a) any
transaction on arm's length commercial terms and for
valuable consideration or (b) any Excluded
Transaction;
(2) secure all or any part of the Subordinated
Indebtedness;
(3) redeem, purchase or otherwise acquire any of the
Subordinated Indebtedness;
(4) repay or prepay any, or pay any interest, fees or
commissions (but without prejudice to accrual
thereof) on, or by reference to, any of the
Subordinated Indebtedness otherwise than in
accordance with the terms of this Agreement; or
(5) take or omit to take any action whereby the
subordination of the Subordinated Indebtedness or any
part thereof to the Senior Indebtedness may be
terminated, impaired or adversely affected.
(B) By Shareholders: Except as otherwise expressly provided in this Agreement,
none of the Shareholders shall, without the prior consent in writing of the
Agent and the Banks, prior to the Discharge Date:-
(1) ask, demand, sue for, take or receive, directly or
indirectly, whether by exercise of set-off,
counterclaim or in any other manner, or recover or
enforce payment of any Subordinated Indebtedness
(provided that, for the avoidance of doubt, nothing
under this paragraph (1) shall prohibit any asking,
demand, suit for, taking or receipt, or recovery or
enforcement of, any payment due by the Borrower under
any of the Excluded
<PAGE> 56
53
Transactions);
(2) take any security from the Borrower or any other
person in respect of any Subordinated Indebtedness
and any security taken notwithstanding the
undertaking in this paragraph (2) shall be held by
the relevant Shareholder in trust for the Agent;
(3) make or enforce any claim or right against the
Borrower or prove in competition with the Agent or
any Bank in respect of the performance of any
obligation under this Agreement;
(4) assign, transfer, sell, charge or purport to assign,
transfer, sell, charge or otherwise dispose or
purport to dispose of the whole or any part of or any
interest in any rights which it may from time to time
and for the time being have against the Borrower in
respect of the Subordinated Indebtedness; or
(5) take or omit to take any action whereby the
subordination of the Subordinated Indebtedness or any
part thereof to the Senior Indebtedness may be
terminated, impaired or adversely affected.
5. REPRESENTATIONS AND WARRANTIES
(A) By Shareholders: Each of the Shareholders severally
represents and warrants to and for the benefit of the Agent and each of the
Banks in relation to itself that:-
(1) Status: it is a company duly incorporated and validly
existing under the laws of Singapore (in the case of
CSM and EDBI) or the Netherlands (in the case of
ATE), and has the power and authority to own its
assets and to conduct the business which it conducts
and/or proposes to conduct;
(2) Powers: it has the power to enter into, exercise
its rights and perform and comply with its
obligations under this Agreement;
(3) Authorisations and Consents: all action, conditions
and things required to be taken, fulfilled and done
(including the obtaining of any necessary consents)
in order (a) to enable it lawfully to enter into,
exercise its rights and perform and comply with its
obligations under this Agreement, (b) to ensure that
those obligations are valid, legally binding and
enforceable, and (c) to make this Agreement
admissible in evidence in the courts of Singapore and
the Netherlands have been taken, fulfilled and done;
(4) Non-Violation of Laws: its entry into, exercise of
its rights and/or performance of or compliance with
its obligations under this Agreement do not and will
not violate, or exceed any power or restriction
granted or imposed by, (a) any law to which it is
subject or (b) its Memorandum and Articles of
Association;
<PAGE> 57
54
(5) Obligations Binding: its obligations under this
Agreement are valid, binding and enforceable;
(6) Non-Violation of Other Agreements: its entry into,
exercise of its rights and/or performance of or
compliance with its obligations under this Agreement
do not and will not violate, to an extent or in a
manner which has or will have a material adverse
effect on it, any agreement to which it is a party or
which is binding on it or its assets;
(7) Litigation: no litigation, arbitration or
administrative proceeding is current or pending (a)
to restrain the entry into, exercise of its rights
under and/or performance or enforcement of or
compliance with its obligations under this Agreement
or (b) which has or will have a material adverse
effect on it;
(8) Winding-up: no meeting has been convened for its
winding-up or for the appointment of a receiver,
trustee, judicial manager or similar officer of it,
its assets or any of them, no such step is intended
by it and, so far as it is aware, no petition,
application or the like is outstanding for its
winding-up or for the appointment of a receiver,
trustee, judicial manager or similar officer of it,
its assets or any of them;
(9) No Default: as far as it is aware after having made
all due and proper enquiries, no Event of Default or
Potential Event of Default has occurred, and it is
not in breach of or default under any agreement to an
extent or in a manner which has or will have a
material adverse effect on it; and
(10) Repetition: each of the above representations and
warranties will be correct and complied with in all
material respects at all times up to the Termination
Date as if repeated then by reference to the then
existing circumstances.
(B) By CSM: CSM further represents and warrants to and for the benefit of the
Agent and each of the Banks that:-
(1) Shareholding: CSM is (either directly or through any
one or more of its wholly-owned subsidiaries) the
legal and beneficial owner of at least 51 per cent.
of the issued share capital of the Borrower and
Singapore Technologies Pte Ltd is (either directly or
through any one of more of its wholly-owned
subsidiaries) the legal and beneficial owner of at
least 51 per cent. of the issued share capital of
CSM;
(2) Accounts: its audited accounts and consolidated
accounts (if any) as at 31st December, 1996 and for
the financial year then ended and as delivered to the
Agent (with copies of the reports and approvals
referred to in (a) below):-
(a) include such financial statements as are
required by the laws of Singapore and, save
as stated in the notes thereto, were
prepared, audited, examined, reported on and
approved in
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55
accordance with accounting principles and
practices generally accepted in Singapore
and consistently applied and in
accordance with the laws of Singapore and
its Memorandum and Articles of Association
(or other constitutive documents);
(b) together with those notes, give a true and
fair view of its state of affairs and
financial condition and operations (or, in
the case of consolidated accounts, the
consolidated state of affairs and financial
condition and operations of CSM and its
subsidiaries) as at that date and for the
financial year then ended; and
(c) together with those notes and to the extent
required by accounting principles, standards
and practices generally accepted in
Singapore disclose or reserve against all
liabilities (contingent or otherwise) of the
relevant person(s) as at that date and all
material unrealised or anticipated losses
from any commitment entered into by the
relevant person(s) and which existed on that
date;
(3) No Material Adverse Change: there has been no material
adverse change in its financial condition or operations
since 31st December, 1997 nor in the consolidated
financial condition or operations of it and its
subsidiaries since that date; and
(4) Repetition: the representation and warranty in
paragraph (1) will be correct and complied with in
all respects so long as any sum remains to be lent or
remains payable under the Credit Agreement as if
repeated then by reference to the then existing
circumstances and each of the representations and
warranties in paragraphs (2) and (3) will be correct
and complied with in all material respects at all
times up to the Termination Date as if repeated then
by reference to the then existing circumstances.
(C) By EDBI: EDBI further represents and warrants to and for the benefit of the
Agent and each of the Banks that EDBI is, on the date of this Agreement, the
legal and beneficial owner of not less than 19 per cent. of the issued share
capital of the Borrower.
(D) By ATE: ATE further represents and warrants and for the benefit of the Agent
and each of the Banks that:-
(1) Shareholding: ATE has an effective shareholding in
not less than 30 per cent. of the issued share
capital of the Borrower and ATI (either directly or
through any one or more of its subsidiaries in which
it owns not less than 95 per cent. of the issued
share capital of that subsidiary) has an effective
shareholding in not less than 30 per cent. of the
issued share capital of the Borrower for a period of
not less than four years from the date of the Joint
Venture Agreement;
(2) Information Pack: at 13th October, 1999, the
information in the Information Pack relating to, and
provided by, ATI was true, complete and
<PAGE> 59
56
accurate in all material respects;
(3) No Material Adverse Change: there has been no
material adverse change in the financial condition
or operations of ATI since 13th October, 1999; and
(4) Repetition: the representation and warranty in
paragraph (1) will be correct and complied with in
all respects so long as any sum remains to be lent or
remains payable under the Credit Agreement as if
repeated then by reference to the then existing
circumstances and the representation and warranty in
paragraph (2) will be correct and complied with in
all material respects at all times up to the
Termination Date as if repeated then by reference to
the then existing circumstances.
6. UNDERTAKINGS
(A) By Shareholders: (1) Each of the Shareholders severally
undertakes that, at all times prior to the Termination Date:-
(a) Litigation: it will, as soon as reasonably
practicable, deliver to the Agent for distribution to
the Banks details of any litigation, arbitration or
administrative proceeding which, if to its knowledge
had been current or pending at the date of this
Agreement, would have rendered the representation and
warranty in Clause 5(A)(7) incorrect;
(b) Other Information: it will, as soon as reasonably
practicable, deliver to the Agent for distribution to
the Banks such other information relating to its
financial condition or business of it as the Agent
(or any Bank through the Agent) may from time to time
reasonably require (except for information of a
proprietary nature or which is reasonably regarded by
it as confidential); and
(c) Further Assurance: it will from time to time on
reasonable request by the Agent acting on the
instructions of the Majority Banks do or procure the
doing of all such acts and will execute or procure
the execution of all such documents as may be
reasonably necessary for giving full effect to this
Agreement or securing to the Agent and the Banks the
full benefits of all rights, powers and remedies
conferred upon the Agent and the Banks in this
Agreement.
(2) Each of the Shareholders severally undertakes that, so long as any
sum remains to be lent or remains payable under the Credit Agreement:-
(a) No Winding-up: it will not propose or vote in
favour of any resolution for the winding-up,
liquidation or dissolution of the Borrower; and
(b) Dividends: it will exercise all voting rights
attaching to the shares in the capital of the
Borrower for the time being held by it so as to
ensure that the Borrower does not declare or pay any
dividend otherwise then in accordance with Clause
16(13) of the Credit Agreement.
<PAGE> 60
57
(B) By CSM: (1) CSM further undertakes that, so long as any sum remains to be
lent or remains payable under the Credit Agreement, it will be (either directly
or through any one or more of its wholly-owned subsidiaries) the legal and
beneficial owner of at least 51 per cent. of the issued share capital of the
Borrower and Singapore Technologies Pte Ltd will be (either directly or through
any one or more of its wholly-owned subsidiaries) the legal and beneficial owner
of at least 51 per cent. of the issued share capital of CSM.
(2) CSM further undertakes that, at all times prior to the Termination
Date, it will, as soon as available and in any event within 180 days after the
end of each of its financial years (beginning with the current one), deliver to
the Agent enough copies for the Banks of its audited accounts (both consolidated
and unconsolidated) as at the end of and for that financial year.
(C) By EDBI: EDBI further undertakes that, at all times prior to the Termination
Date, it will deliver to the Agent as soon as available and in any event within
180 days after the end of each of its financial years (beginning with the
current one), enough copies for the Banks of a statement as to its share capital
and reserves as at the end of and for that financial year.
(D) By ATE: (1) ATE further undertakes that, so long as any sum remains to be
lent or remains payable under the Credit Agreement, ATI (either directly or
through one or more of its subsidiaries in which it owns not less than 95 per
cent. of the issued share capital of that subsidiary) will have an effective
shareholding in not less than 30 per cent. of the issued share capital of the
Borrower for a period of not less than four years from the date of the Joint
Venture Agreement.
(2) ATE further undertakes that, at all times prior to the
Termination Date:-
(a) Preparation of Accounts: it will ensure that all
accounts of ATI to be delivered by it under this
Agreement are prepared in such manner that they will:-
(i) include such financial statements as are required by
the laws of the United States of America and, save as
stated in the notes thereto, were prepared, audited,
examined, reported on and approved in accordance with
accounting principles and practices generally accepted
in the United States of America consistently applied
and in accordance with the laws of the United States of
America and its Memorandum and Articles of Association
(or other constitutive documents);
(ii) together with those notes, give a true and fair view of
its state of affairs and financial condition and
operations (or, in the case of consolidated accounts,
the consolidated state of affairs and financial
condition and operations of ATI and its subsidiaries)
as at that date and for the financial year then ended;
and
(iii) together with those notes and to the extent required
by accounting principles, standards and practices
generally accepted in the United States of America
disclose or reserve against all liabilities (contingent
or otherwise) of the relevant person(s) as at
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58
that date and all material unrealised or
anticipated losses from any commitment entered into
by the relevant person(s) and which existed on that
date; and
(b) it will, as soon as available and in any event within
180 days after the end of each of its financial years
(beginning with the current one), deliver, or cause
to be delivered, to the Agent enough copies for the
Banks (on the basis of one copy for each Bank) of the
published annual report of ATI as at the end of and
for that financial year.
7. PAYMENTS
(A) Taxes: (1) All sums payable by the Shareholders under this Agreement shall
be paid (1) free of any restriction or condition, (2) free and clear of and
(except to the extent required by law) without any deduction or withholding for
or on account of any tax and (3) without deduction or withholding (except to the
extent required by law) on account of any other amount, whether by way of
set-off or otherwise.
(2) If any of the Shareholders or any other person (whether or not a
party to, or on behalf of a party to, this Agreement) must at any time deduct or
withhold any tax or other amount from any sum paid or payable by, or received or
receivable from, that Shareholder under this Agreement, that Shareholder shall
pay such additional amount as is necessary to ensure that the Agent or, as the
case may be, the Bank to which that sum is due, receives on the due date and
retains (free from any liability other than tax on its own overall net income) a
net sum equal to what it would have received and so retained had no such
deduction or withholding been required or made.
(3) If any of the Shareholders or any other person (whether or not a
party to, or on behalf of a party to, this Agreement) must at any time pay any
tax or other amount on, or calculated by reference to, any sum received or
receivable by the Agent or, as the case may be, any of the Banks from that
Shareholder under this Agreement (except for a payment by the Agent or a Bank of
tax on its own overall net income), that Shareholder shall pay or procure the
payment of that tax or other amount before any interest or penalty becomes
payable or, if that tax or other amount is payable and paid by the Agent or any
Bank, shall reimburse it on demand for the amount paid by it.
(4) Within 30 days after paying any sum from which it is required by
law to make any deduction or withholding, and within 30 days after the due date
of payment of any tax or other amount which it is required by paragraph (3)
above to pay, the relevant Shareholder shall deliver to the Agent evidence
reasonably satisfactory to the Agent or, as the case may be, the relevant Bank
of that deduction, withholding or payment and (where remittance is required) of
the remittance thereof to the relevant taxing or other authority.
(5) As soon as any of the Shareholders is aware that any such
deduction, withholding or payment is required (or any change in any such
requirement), that Shareholder shall notify the Agent.
(B) Goods and Services Tax: Each of the Shareholders shall also pay to the Agent
and each Bank on demand, in addition to any amount payable by that Shareholder
under this Agreement, any goods and services, value added or other similar tax
payable in respect of that
<PAGE> 62
59
amount (and any reference in this Agreement to that amount shall be deemed to
include any such taxes payable in addition to it).
(C) Refund of Tax Credits: If:-
(1) any Shareholder makes a payment under sub-Clause
(A)(2) or (3) (a "Tax Payment") in respect of a
payment to a Bank under this Agreement; and
(2) that bank determines in its absolute discretion that
it has obtained a refund of tax or obtained and used
a credit against tax on its overall net income (a
"Tax Credit") which that Bank in its absolute
discretion is able to identify as attributable to
that Tax Payment,
then, if in its absolute discretion it can do so without any adverse
consequences for that Bank, that Bank shall reimburse that Shareholder such
amount as that Bank in its absolute discretion determines to be such proportion
of that Tax Credit as will leave that Bank (after that reimbursement) in no
better or worse position in respect of its worldwide tax liabilities than it
would have been in if no Tax Payment had been required. A Bank shall have an
absolute discretion as to whether to claim any Tax Credit (and, if it does
claim, the extent, order and manner in which it does so) and whether any amount
is due from it under this sub-Clause (C) (and, if so, what amount and when). No
Bank shall be obliged to disclose any information regarding its tax affairs and
computations.
(D) Currency Indemnity: (1) Any amount received or recovered by the Agent or any
Bank in respect of any sum expressed to be due to it from any Shareholder under
or in connection with this Agreement in a currency (such currency being referred
to as the "Relevant Currency") other than the currency in which such sum is
expressed to be due under this Agreement (such currency being referred to as the
"Currency of Account") whether as a result of, or of the enforcement of, a
judgment or order of a court or tribunal of any jurisdiction, in the winding-up
of that Shareholder or otherwise, shall only constitute a discharge to that
Shareholder to the extent of the amount in the Currency of Account which the
recipient is able, in accordance with its usual practice, to purchase with the
amount of the Relevant Currency so received or recovered on the date of that
receipt or recovery (or, if it is not practicable to make that purchase on that
date, on the first date on which it is practicable to do so).
(2) If that amount in the Currency of Account is less than the amount
of the Currency of Account due to the recipient under or in connection with this
Agreement, that Shareholder shall indemnify it against any loss sustained by it
as a result. In any event, that Shareholder shall indemnify the recipient
against the cost of making any such purchase. For the purpose of this sub-Clause
(D), it will be sufficient for the recipient to demonstrate that it would have
suffered a loss had an actual exchange or purchase been made.
(3) Each of the indemnities in this sub-Clause (D) constitutes a
separate and independent obligation from the other obligations in this
Agreement, shall give rise to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by the Agent, any Arranger and/or
any Bank and shall continue in full force and effect despite any judgment,
order, claim or proof for a liquidated amount in respect of any sum due under
this Agreement or any other judgment or order.
8. NATURE OF RIGHTS AND OBLIGATIONS
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60
(A) No Release: The obligations of the Shareholders under this Agreement
(excluding, for the avoidance of doubt, any obligation of the Shareholders under
this Agreement which has been discharged) shall not be discharged, impaired or
otherwise affected by any act, omission, matter or thing which, but for this
sub-Clause (A), may operate to release or otherwise exonerate any of the
Shareholders from its obligations under this Agreement in whole or in part,
including without limitation and whether or not known to it or any other
person:-
(1) any variation in or to the Project;
(2) any time, indulgence, concession waiver or consent at
any time given by the Agent and/or any of the Banks in
respect of the Senior Indebtedness or any part thereof
or to the Borrower, any Shareholder or any other
person;
(3) any amendment or supplement to any provision of any
Financing Document or any other agreement, security,
guarantee or indemnity;
(4) the making or the absence of any demand on the
Borrower, any Shareholder or any other person for
payment;
(5) the enforcement or absence of enforcement of or release
of any of the Financing Documents or any other
agreement, security, guarantee or indemnity held in
respect of the Senior Indebtedness;
(6) the winding-up, insolvency, bankruptcy, amalgamation,
reconstruction or reorganisation of the Borrower, any
Shareholder or any other person;
(7) the illegality, invalidity or unenforceability of or
any defect in any provision of any Financing Document
or any other agreement, security, guarantee or
indemnity or any of the obligations of the Borrower,
any Shareholder or any other person thereunder, whether
on the grounds of ultra vires, not being in the
interests of the Borrower or any other person, not
having been duly authorised, executed or delivered by
the Borrower or any other person or for any reason
whatsoever; or
(8) any other act, event or omission which but for this
provision would or might operate to impair or discharge
the obligations of any Shareholder under this
Agreement.
(B) Continuing Obligations: The obligations of the Shareholders and the Borrower
under this Agreement are continuing obligations, will not be discharged by any
intermediate payment and will remain in full force and effect until the
obligations have been fulfilled (for the avoidance of doubt, nothing in this
sub-Clause (B) shall affect any obligations of the Borrower or any Shareholder
which has been discharged by the due and proper performance by the Borrower or
such Shareholder of such obligations).
(C) Reinstatement: (1) Any settlement or discharge between the Agent or any of
the Banks and any of the Shareholders shall be conditional upon no security or
payment to the Agent or such Bank by the Borrower or any other person being
avoided or reduced by virtue of any
<PAGE> 64
61
provision or enactment relating to bankruptcy, insolvency or winding-up for the
time being in force or by virtue of any obligation to give effect to any
preference or priority and the Agent or such Bank (as the case may be) shall be
entitled to recover the value or amount of any such security or payment from
that Shareholder subsequently as if such settlement or discharge had not
occurred.
(2) Without prejudice to the provisions of paragraph (2), where any
discharge (whether in respect of the obligations of any Shareholder or any
security for those obligations or otherwise) is made in whole or in part or any
arrangement is made on the faith of any payment, security or other disposition
which is avoided or must be repaid on bankruptcy, insolvency or winding-up or
otherwise without limitation, the liability of the Shareholders under this
Agreement shall, unless the Agent and the Banks agree otherwise, continue as if
the discharge or arrangement, as the case may be, had not occurred.
(D) Failure by Shareholder: The failure of a Shareholder or the Borrower to
perform or comply with any of its obligations under this Agreement shall not
release any other Shareholder or the Borrower of its obligations under this
Agreement.
(E) Immediate Recourse: Each Shareholder waives any right which it may have of
first requesting the Agent or any of the Banks to proceed against or enforce any
other rights or security or claim payment from the Borrower, any other
Shareholder or any other person before claiming from the Shareholder under this
Agreement.
(F) Additional Security: This Agreement shall be in addition to and shall not in
any way be prejudiced by any other security now or hereafter held by the Agent
or any Bank as security for the obligations of the Borrower under the Credit
Agreement.
9. EXPENSES
(A) By Shareholders: Each of the Shareholders shall pay on demand all costs and
expenses (including legal expenses on a full indemnity basis) reasonably
incurred by the Agent and/or any of the Banks in protecting or enforcing any
rights against it under this Agreement.
(B) By Borrower: The Borrower shall pay on demand all costs and expenses
(including legal expenses on a full indemnity basis) reasonably incurred by the
Agent and/or any of the Banks in protecting or enforcing any rights against it
under this Agreement.
10. BENEFIT OF AGREEMENT
(A) Shareholders/Borrower: The Borrower may not assign or transfer any of its
rights, benefits or obligations under this Agreement. None of the Shareholders
may assign or transfer any of their respective rights, benefits or obligations
under this Agreement other than in the following manner and upon the following
terms:-
(1) in the case of EDBI, it may transfer all of its rights, benefits and
obligations under this Agreement to any of its wholly-owned
subsidiaries which has acquired all the shares owned by EDBI in the
Borrower, provided that (a) the transferee shall have agreed in
writing to the other parties to this Agreement to assume all the
obligations of EDBI under this Agreement and (b) EDBI and the
transferee shall have undertaken to the other parties to this
Agreement to ensure that, in the event that the
<PAGE> 65
62
transferee ceases to be a wholly-owned subsidiary of EDBI, the
transferee shall transfer all its rights, benefits and obligations
under this Agreement to EDBI or a wholly-owned subsidiary of EDBI; and
(2) in the case of ATE, it may transfer all of its rights, benefits and
obligations under this Agreement to a ATI Entity (provided that, at
the time of such transfer, ATI owns at least 95 per cent. of the
issued share capital of such ATI Entity) which has acquired all the
shares owned by ATE in the Borrower, provided that (a) such ATI Entity
shall have undertaken to the other parties to this Agreement to assume
all the obligations of ATE under this Agreement and (b) ATE and such
ATI Entity shall have undertaken to the other parties to this
Agreement to ensure that, in the event ATI ceases to own at least 95
per cent. of the issued share capital of such ATI Entity, such ATI
Entity shall transfer all its rights, benefits and obligations under
this Agreement to ATI, ATE or another ATI Entity (of which ATI owns at
least 95 per cent. of its issued share capital).
(B) Agent/Banks: (1) Each of the Agent and the Banks may assign all or part of
its rights under this Agreement without the consent of any party to any assignee
or transferee under the Credit Agreement (but the assignor shall give to the
Borrower prior notice of such assignment or transfer). Any such assignee shall
be entitled to the full benefit of this Agreement to the same extent as if it
were an original party in respect of the rights assigned to it.
(2) None of the Shareholders and the Borrower shall be liable for any
costs or expenses which may be incurred in connection with any assignment or
transfer of any of the rights of the Agent or any of the Banks under this
Agreement.
(C) Disclosure of Information: The Agent or any of the Banks may disclose on a
confidential basis to any other party to the Financing Documents or any of its
other branches or its headquarters or to an actual or potential New Lending
Bank, assignee, sub-participant or the like such information about the Borrower,
any Shareholder or any other person as it may think fit and may disclose to such
party such information about the Borrower or any of the Shareholders with the
prior consent in writing of the Borrower or, as the case may be, such
Shareholder (Provided that, at any time and from time to time after the making
of a declaration under Clause 17(B) of the Credit Agreement, (1) no such consent
will be required for any such disclosure and (2) the Agent or the relevant Bank
making any such disclosure shall, if practicable, consult with the Borrower or,
as the case may be, such Shareholder prior to making any such disclosure and
shall consider in good faith any request from the Borrower or, as the case may
be, such Shareholder to the Agent or such Bank not to make any such disclosure
or to delay making any such disclosure).
(D) Limitation on Certain Obligations: If, at the time of any assignment or
transfer by a Bank, circumstances exist which would oblige any Shareholder to
pay to the assignee or transfer under Clause 7(A) any sum in excess of the sum
(if any) which it would have been obliged to pay to that Bank under that Clause
in the absence of that assignment or transfer, that Shareholder shall not be
obliged to pay that excess.
11. WAIVERS
No failure on the part of the Agent or any of the Banks to exercise, and no
delay on its part in exercising, any right or remedy under this Agreement will
operate as a waiver
<PAGE> 66
63
thereof, nor will any single or partial exercise of any right or remedy preclude
any other or further exercise thereof or the exercise of any other right or
remedy. The rights and remedies provided in this Agreement are cumulative and
not exclusive of any other rights or remedies (whether provided by law or
otherwise).
12. COMMUNICATIONS
(A) Addresses: Each communication under this Agreement shall be made by fax,
telex or otherwise in writing. Each communication or document to be delivered to
any party under this Agreement shall be sent to that party at the fax number,
telex number or address, and marked for the attention of the person (if any),
from time to time designated by that party to the Agent (or, in the case of the
Agent, by it to each other party) for the purpose of this Agreement. The initial
fax number, telex number, address and person (if any) so designated by each
party are set out against its name at the end of this Agreement.
(B) Deemed Delivery: Any communication under this Agreement shall be deemed to
have been received (if sent by fax or telex) on the day of despatch or (in any
other case) when left at the address required by sub-Clause (A) above or within
five days after being sent by prepaid post (by airmail if to another country)
addressed to it at that address.
13. PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any provision of this
Agreement under the law of any jurisdiction shall not affect its legality,
validity or enforceability under the law of any other jurisdiction nor the
legality, validity or enforceability of any other provision.
14. GOVERNING LAW AND JURISDICTION
(A) Governing Law: This Agreement shall be governed by, and construed in
accordance with, the laws of Singapore.
(B) Singapore Courts: For the benefit of the Agent and each Bank, all the
parties irrevocably agree that the courts of Singapore are to have jurisdiction
to settle any disputes which may arise out of or in connection with this
Agreement and that, accordingly, any legal action or proceedings arising out of
or in connection with this Agreement ("Proceedings") may be brought in those
courts and each of the Borrower and the Shareholders irrevocably submits to the
jurisdiction of those courts.
(C) Other Competent Jurisdiction: Nothing in this Clause shall limit the right
of the Agent and/or any Bank to take Proceedings against the Borrower or any of
the Shareholders in any other court of competent jurisdiction nor shall the
taking of Proceedings in one or more jurisdictions preclude the Agent and/or any
Bank from taking Proceedings in any other jurisdiction, whether concurrently or
not.
(D) Venue: Each of the Borrower and the Shareholders irrevocably waives any
objection which it may at any time have to the laying of the venue of any
Proceedings in any court referred to in this Clause and any claim that any such
Proceedings have been brought in an inconvenient forum.
(E) Service of Process: (1) ATE irrevocably appoints Agilent Technologies
Singapore
<PAGE> 67
64
Pte Ltd (now of 438B, Alexandra Road, #05-05, #05-07/12, Alexandra Technopark B,
Singapore 119968, Attention: Legal Counsel) to receive, for it and on its
behalf, service of process in any Proceedings in Singapore. Such service shall
be deemed completed on delivery to the process agent (whether or not it is
forwarded to and received by ATE). If for any reason the process agent ceases to
be able to act as such or no longer has an address in Singapore, ATE irrevocably
agrees to appoint a substitute process agent acceptable to the Agent, and to
deliver to the Agent a copy of the new agent's acceptance of that appointment,
within 30 days. Nothing shall affect the right to serve process in any other
manner permitted by law.
(F) Consent to Enforcement, etc.: Each of the Borrower and the Shareholders
irrevocably and generally consents in respect of any Proceedings anywhere to the
giving of any relief or the issue of any process in connection with those
Proceedings including, without limitation, the making, enforcement or execution
against any assets whatsoever (irrespective of their use or intended use) of any
order or judgment which may be made or given in those Proceedings.
(G) Waiver of Immunity: Each of the Borrower and the Shareholders irrevocably
agrees that, should the Agent or any Bank take any Proceedings anywhere (whether
for an injunction, specific performance, damages or otherwise), no immunity (to
the extent that it may at any time exist, whether on the grounds of sovereignty
or otherwise) from those Proceedings, from attachment (whether in aid of
execution, before judgment or otherwise) of its assets or from execution of
judgment shall be claimed by it or on its behalf or with respect to its assets,
any such immunity being irrevocably waived. Each of the Borrower and the
Shareholders irrevocably agrees that it and its assets are, and shall be,
subject to such Proceedings, attachment or execution in respect of its
obligations under this Agreement.
<PAGE> 68
72
I N W I T N E S S W H E R E O F this Supplemental
Agreement has been entered into on the date stated at the beginning.
THE BORROWER
CHARTERED SILICON PARTNERS PTE LTD
60, Woodland Industrial Park D,
Street 2,
Singapore 738406.
Fax Number: 362 2909
Attention: Legal Department
By: /s/ Chia Song Hwee Witness: /s/ Angela Hon
-------------------------- ---------------------------
Name: Chia Song Hwee Name: Angela Hon
------------------------ -------------------------------
Title: Chief Financial Officer Address:
----------------------- ---------------------------
THE ARRANGERS
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
63, Chulia Street, 5th Floor,
Singapore 049514.
Fax Number: 231 8477
Telex Number: RS 24396
Attention: Ms Samantha Chew/Ms Pauline Low
By: /s/ Goh Chong Theng By: /s/ Rajan Ray
------------------------- ---------------------------
Name: Goh Chong Theng Name: Rajan Ray
----------------------- -------------------------------
Title: Senior Vice President Title: Country Manager
---------------------- ---------------------------
<PAGE> 69
73
BAYERISCHE LANDESBANK GIROZENTRALE,
SINGAPORE BRANCH
300, Beach Road, #37-01,
The Concourse,
Singapore 199555.
Fax Number: 293 3171
Telex Number: RS 21445 BAYSIN
Attention: Mr Ng Chong Inn
By: /s/ Ng Chong Inn By: /s/ Lum Wai Yue
------------------------- --------------------------------
Name: Ng Chong Inn Name: Lum Wai Yue
----------------------- -------------------------------
Title: Vice President Title: Assistant Vice President
---------------------- -----------------------------
CITIBANK, N.A.,
SINGAPORE BRANCH
5, Shenton Way, #37-03,
UIC Building,
Singapore 068808.
Fax Number: 225 1584
Telex Number: RS 24584 CITBANK
Attention: Mr Bill Chua/Mr Lim Shien Kwok
By: /s/ Bill Chua
-------------------------
Name: Bill Chua
-----------------------
Title: Vice President
----------------------
<PAGE> 70
74
OVERSEAS UNION BANK LIMITED
1, Raffles Place, 10th Floor,
OUB Centre,
Singapore 048616.
Fax Number: 532 2686/538 2449
Telex Number: RS 23916
Attention: Mr Jeffrey Ling/Ms Seah Siew Kee
By: /s/ Jeffrey Ling
--------------------------
Name: Jeffrey Ling
-----------------------
Title: Vice President
-----------------------
THE SUMITOMO BANK, LIMITED,
SINGAPORE BRANCH
6, Shenton Way, #27-08,
DBS Tower Two,
Singapore 068809.
Fax Number: 225 9647
Telex Number: RS 21656 SUMITBK
Attention: Ms Serene Chee
By: /s/ Kazushige Goto
-----------------------------
Name: Kazushige Goto
--------------------------
Title: Assistant General Manager
--------------------------
<PAGE> 71
75
GUARANTOR BANKS
ABN-AMRO BANK N.V.,
SINGAPORE BRANCH
63, Chulia Street, 5th Floor,
Singapore 049514.
Fax Number: 231 8477
Telex Number: RS 24396
Attention: Ms Samantha Chew/Ms Pauline Low
By: /s/ Goh Chong Theng By: /s/ Rajan Ray
--------------------------- ---------------------------------
Name: Goh Chong Theng Name: Rajan Ray
------------------------ ------------------------------
Title: Senior Vice President Title: Country Manager
------------------------ ------------------------------
BAYERISCHE LANDESBANK GIROZENTRALE,
SINGAPORE BRANCH
300, Beach Road, #37-01,
The Concourse,
Singapore 199555.
Fax Number: 293 3171
Telex Number: RS 21445 BAYSIN
Attention: Mr Ng Chong Inn
By: /s/ Ng Chong Inn By: /s/ Lum Wai Yue
-------------------------- ---------------------------------
Name: Ng Chong Inn Name: Lum Wai Yue
----------------------- ------------------------------
Title: Vice President Title: Assistant Vice President
----------------------- ------------------------------
<PAGE> 72
76
CITIBANK, N.A., SINGAPORE BRANCH
5, Shenton Way, #37-03,
UIC Building,
Singapore 068808.
Fax Number: 225 1584
Telex Number: RS 24584 CITBANK
Attention: Mr Bill Chua/Mr Lim Shien Kwok
By: /s/ Bill Chua
--------------------------
Name: Bill Chua
------------------------
Title: Vice President
-----------------------
OVERSEAS UNION BANK LIMITED
1, Raffles Place, 10th Floor,
OUB Centre,
Singapore 048616.
Fax Number: 532 2686/538 2449
Telex Number: RS 23916
Attention: Mr Jeffrey Ling/Ms Seah Siew Kee
By: /s/ Jeffrey Ling
--------------------------
Name: Jeffrey Ling
------------------------
Title: Vice President
-----------------------
<PAGE> 73
77
THE SUMITOMO BANK, LIMITED,
SINGAPORE BRANCH
6, Shenton Way, #27-08,
DBS Tower Two,
Singapore 068809.
Fax Number: 225 9647
Telex Number: RS 21656 SUMITBK
Attention: Ms Serene Chee
By: /s/ Kazushige Goto
-----------------------------
Name: Kazushige Goto
-----------------------------
Title: Assistant General Manager
-----------------------------
THE SANWA BANK, LIMITED,
SINGAPORE BRANCH
6, Raffles Quay, #24-01,
John Hancock Tower,
Singapore 048580.
Fax Number: 538 4636
Telex Number: RS 28573
Attention: Ms Loh Soh Wah/Mr Lim Wee Hian
By: /s/ Tan Teck Soon
-----------------------------
Name: Tan Teck Soon
-----------------------------
Title: Senior Manager
-----------------------------
<PAGE> 74
78
THE BANK OF TOKYO-MITSUBISHI, LTD.,
SINGAPORE BRANCH
9, Raffles Place, #01-01,
Republic Plaza,
Singapore 048619.
Fax Number: 538 8083
Telex Number: RS 24363
Attention: Ms Beatrice Chan (Loan Administration Department)/
Mr Gan Boon Seng (Corporate Finance Department)
By: /s/ Kazuaki Inamoto
-------------------------
Name: Kazuaki Inamoto
-----------------------
Title: Deputy General Manager
----------------------
DEN DANSKE BANK AKTIESELSKAB,
SINGAPORE BRANCH
50, Raffles Place, #24-01,
Singapore Land Tower,
Singapore 048623.
Fax Number: 224 3320
Telex Number: 28030 DDBSIN
Attention: Mr Jorgen Faenoe/Ms Maureen Wee
By: /s/ Jorgen Faenoe By:
------------------------- -------------------------
Name: Jorgen Faenoe Name:
----------------------- -----------------------
Title: Manager Title:
---------------------- ----------------------
<PAGE> 75
79
THE LENDING BANKS
ABN-AMRO BANK N.V.,
SINGAPORE BRANCH
63, Chulia Street, 5th Floor,
Singapore 049514.
Fax Number: 231 8477
Telex Number: RS 24396
Attention: Ms Samantha Chew/Ms Pauline Low
By: /s/ Goh Chong Theng By: /s/ Rajan Ray
----------------------------- -----------------------------
Name: Goh Chong Theng Name: Rajan Ray
--------------------------- ---------------------------
Title: Senior Vice President Title: Country Manager
-------------------------- --------------------------
BAYERISCHE LANDESBANK GIROZENTRALE,
SINGAPORE BRANCH
300, Beach Road, #37-01,
The Concourse,
Singapore 199555.
Fax Number: 293 3171
Telex Number: RS 21445 BAYSIN
Attention: Mr Ng Chong Inn
By: /s/ Ng Chong Inn By: /s/ Lum Wai Yue
----------------------------- -----------------------------
Name: Ng Chong Inn Name: Lum Wai Yue
--------------------------- ---------------------------
Title: Vice President Title: Assistant Vice President
-------------------------- --------------------------
<PAGE> 76
80
CITIBANK, N.A., SINGAPORE BRANCH
5, Shenton Way, #37-03,
UIC Building,
Singapore 068808.
Fax Number: 225 1584/426 8959
Telex Number: RS 24584 CITBANK
Attention: Mr Bill Chua/Mr Lim Shien Kwok
By: /s/ Bill Chua
-----------------------------
Name: Bill Chua
---------------------------
Title: Vice President
--------------------------
OVERSEAS UNION BANK LIMITED
1, Raffles Place, 10th Floor,
OUB Centre,
Singapore 048616.
Fax Number: 532 2686/538 2449
Telex Number: RS 23916
Attention: Mr Jeffrey Ling/Ms Seah Siew Kee
By: /s/ Jeffrey Ling
-----------------------------
Name: Jeffrey Ling
---------------------------
Title: Vice President
--------------------------
<PAGE> 77
81
THE SUMITOMO BANK, LIMITED,
SINGAPORE BRANCH
6, Shenton Way, #27-08,
DBS Tower Two,
Singapore 068809.
Fax Number: 225 9647
Telex Number: RS 21656 SUMITBK
Attention: Ms Serene Chee
By: /s/ Kazushige Goto
--------------------------------
Name: Kazushige Goto
------------------------------
Title: Assistant General Manager
-----------------------------
THE BANK OF TOKYO-MITSUBISHI, LTD.,
SINGAPORE BRANCH
9, Raffles Place, #01-01,
Republic Plaza,
Singapore 048619.
Fax Number: 538 8083
Telex Number: RS 24363
Attention: Ms Beatrice Chan (Loan Administration Department)/
Mr Gan Boon Seng (Corporate Finance Department)
By: /s/ Sugiyama, Hajime
--------------------------------
Name: Sugiyama, Hajime
------------------------------
Title: Deputy General Manager
-----------------------------
<PAGE> 78
82
DEN DANSKE BANK AKTIESELSKAB,
SINGAPORE BRANCH
50, Raffles Place, #24-01,
Singapore Land Tower,
Singapore 048623.
Fax Number: 224 3320
Telex Number: 28030 DDBSIN
Attention: Mr Jorgen Faenoe/Ms Maureen Wee
By: /s/ Jorgen Faenoe By:
------------------------- ------------------------------
Name: Jorgen Faenoe Name:
----------------------- ----------------------------
Title: Manager Title:
---------------------- ----------------------------
THE AGENT
ABN AMRO BANK N.V.,
SINGAPORE BRANCH
63, Chulia Street, 5th Floor,
Singapore 049514.
Fax Number: 536 7816
Telex Number: RS 24396
Attention: Ms Sally Loh/Ms Patricia Teo
By: /s/ Goh Chong Theng By: /s/ Rajan Ray
------------------------- ------------------------------
Name: Goh Chong Theng Name: Rajan Ray
----------------------- ----------------------------
Title: Senior Vice President Title: Country Manager
---------------------- ----------------------------
<PAGE> 1
EXHIBIT 10.3
DATED 9TH NOVEMBER, 1999
CHARTERED SILICON PARTNERS PTE LTD
AS BORROWER
AGILENT TECHNOLOGIES EUROPE B.V.
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
EDB INVESTMENTS PTE LTD
AS SHAREHOLDERS
HEWLETT-PACKARD EUROPE B.V.
AS RETIRING SHAREHOLDER
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
-------------------------------------------------
SECOND SUPPLEMENTAL
SHAREHOLDERS UNDERTAKING
(RELATING TO THE SHAREHOLDERS UNDERTAKING
DATED 1ST JULY, 1998 AS SUPPLEMENTED BY
THE FIRST SUPPLEMENTAL SHAREHOLDERS UNDERTAKING
DATED 16TH DECEMBER, 1998)
-------------------------------------------------
ALLEN & GLEDHILL,
36, ROBINSON ROAD, #18-01,
CITY HOUSE,
SINGAPORE 068877.
<PAGE> 2
C O N T E N T S
<TABLE>
<CAPTION>
CLAUSE HEADING PAGE
- ------ ------- ----
<S> <C> <C>
1. INTERPRETATION 1
2. AMENDMENTS TO AND RESTATEMENT OF THE
SHAREHOLDERS UNDERTAKING 2
3. DISCHARGE 2
4. REPRESENTATIONS AND WARRANTIES 3
5. EXPENSES AND STAMP DUTY 3
6. GOVERNING LAW AND JURISDICTION 3
SCHEDULE - FORM OF AMENDED AND RESTATED
SHAREHOLDERS UNDERTAKING 5
</TABLE>
<PAGE> 3
THIS SECOND SUPPLEMENTAL SHAREHOLDERS UNDERTAKING is made on 9th
November, 1999 BETWEEN:-
(1) CHARTERED SILICON PARTNERS PTE LTD (the "Borrower");
(2) AGILENT TECHNOLOGIES EUROPE B.V. ("ATE"), CHARTERED SEMICONDUCTOR
MANUFACTURING LTD ("CSM") and EDB INVESTMENTS PTE LTD ("EDBI");
(3) HEWLETT-PACKARD EUROPE B.V. (the "Retiring Shareholder"); and
(4) ABN AMRO BANK N.V., SINGAPORE BRANCH, as agent for and on behalf of the
Banks (in such capacity, the "Agent", which expression shall include any of
its successors in such capacity),
and amends a Shareholders Undertaking (the "Shareholders Undertaking") dated 1st
July, 1998 made between (1) the Borrower, as borrower, (2) CSM, EDBI and the
Retiring Shareholder (together, the "Existing Shareholders"), as shareholders,
and (3) the Agent, as agent, as supplemented by a first supplemental
shareholders undertaking (the "First Supplemental Undertaking") dated 16th
December, 1998 made between the parties to the Shareholders Undertaking.
WHEREAS:-
(A) Pursuant to the Shareholders Undertaking, the Existing Shareholders agreed
to undertake certain obligations in favour of the Agent and the Banks, upon the
terms and subject to the conditions of the Shareholders Undertaking.
(B) Pursuant to the First Supplemental Undertaking, the Borrower, the Existing
Shareholders, the Arrangers, the Guarantor Banks, the Lending Banks and the
Agent have agreed to amend the Shareholders Undertaking, on the terms and
subject to the conditions of the First Supplemental Undertaking.
(C) The Borrower, ATE, CSM, EDBI and the Retiring Shareholder wish to amend the
Shareholders Undertaking (as supplemented by the First Supplemental Undertaking)
to, inter alia, replace the Retiring Shareholder with ATE, and the Banks have
agreed, on the terms and subject to the conditions set out in this Supplemental
Undertaking, to amend and restate the Shareholders Undertaking (as supplemented
by the First Supplemental Undertaking) as set out in this Supplemental
Undertaking.
IT IS AGREED as follows:-
1. INTERPRETATION
(A) Definitions: In this Supplemental Undertaking, except to the extent that
the context requires otherwise:-
"Credit Agreement" means the Credit Agreement dated 12th March, 1998 made
between (1) the Borrower, as borrower, (2) the Arrangers named therein, as
arrangers, (3) the Guarantor Banks named therein, as guarantor banks, (4)
the Lending Banks named therein, as lending banks, and (5) the Agent, as
agent, as supplemented by the first supplemental agreement dated 14th
December 1998 made
<PAGE> 4
2
between the parties to the Credit Agreement and as further supplemented by
the Second Supplemental Agreement;
"Restated Shareholders Undertaking" means the Shareholders Undertaking as
amended and restated on the terms of Schedule 1;
"Second Supplemental Agreement" means the second supplemental agreement
dated 9th November, 1999 between the parties to the Credit Agreement, being
supplemental to the Credit Agreement as supplemented by the First
Supplemental Agreement; and
"Shareholders" means ATE, CSM and EDBI (and includes their respective
successors and permitted assignees and transferees).
(B) Construction of Certain References: All terms and references used in the
Shareholders Undertaking and which are defined or construed in the Shareholders
Undertaking but are not defined or construed in this Supplemental Undertaking
shall have the same meaning and construction in this Supplemental Undertaking.
All references in this Supplemental Undertaking to the Shareholders Undertaking
shall be to the Shareholders Undertaking as amended, supplemented or modified by
the First Supplemental Undertaking.
(C) Miscellaneous: The headings in this Supplemental Undertaking are inserted
for convenience only and shall be ignored in construing this Supplemental
Undertaking. Unless otherwise stated, references to "Clauses" and "Schedule" are
to be construed as references to the clauses of, and the schedule to, this
Supplemental Undertaking.
2. AMENDMENTS TO AND RESTATEMENT OF THE SHAREHOLDERS UNDERTAKING
(A) Supplemental Undertaking: This Supplemental Undertaking is and shall be
construed as supplemental to the Shareholders Undertaking and every Clause
thereof shall continue in full force and effect and be binding on the parties
thereto save as expressly amended and supplemented by this Supplemental
Undertaking. In addition, except as expressly provided for herein, this
Supplemental Undertaking shall not affect any rights or interests of the Agent
and the Banks whatsoever existing immediately prior to the Effective Date (as
defined in the Second Supplemental Agreement).
(B) Amendment and Restatement of Shareholders Undertaking: The parties agree
that the Shareholders Undertaking shall, with effect on and from the Effective
Date, be amended and restated in the form of the Restated Shareholders
Undertaking so that the rights and obligations of the parties to this
Supplemental Undertaking under the Shareholders Undertaking shall, on and after
the Effective Date, be governed by, and construed in accordance with, the
Restated Shareholders Undertaking.
3. DISCHARGE
The parties agree that, on and from the Effective Date, the Retiring
Shareholder shall be discharged from its obligations under the Shareholders
Undertaking without prejudice to any obligations accrued before that date.
4. REPRESENTATIONS AND WARRANTIES
<PAGE> 5
3
Each of the Borrower and the Shareholders severally represents and warrants
to and for the benefit of each of the other parties to this Supplemental
Undertaking that:-
(1) all action, conditions and things required to be taken, fulfilled and
done (including the obtaining of any necessary consents) in order (a)
to enable it lawfully to enter into, exercise its rights and perform
and comply with its obligations under this Supplemental Undertaking
and (b) to make this Supplemental Undertaking admissible in evidence
in the courts of Singapore and the Netherlands, have been taken,
fulfilled and done;
(2) its entry into, exercise of its rights and/or performance of or
compliance with its obligations under this Supplemental Undertaking
and the Restated Shareholders Undertaking, do not and will not violate
(a) any law to which it is subject, (b) any provision of its
constitutive documents or (c) to an extent or in a manner which has or
will have a material adverse effect on it, any agreement to which it
is a party or which is binding on it or its assets; and
(3) this Supplemental Undertaking and the Restated Shareholders
Undertaking, constitute its valid, binding and enforceable obligations
in accordance with their respective terms.
5. EXPENSES AND STAMP DUTY
The Borrower shall pay:-
(1) on demand, all costs and expenses (including legal fees and all goods
and services, value added and other duties or taxes payable on such
costs and expenses) reasonably incurred by the Agent in connection
with the preparation, negotiation and entry into of this Supplemental
Undertaking and the Restated Shareholders Undertaking; and
(2) promptly, and in any event before any penalty becomes payable, any
stamp, goods and services, value added, documentary or similar duty or
tax payable in connection with the entry into, performance,
enforcement and admissibility in evidence of any of this Supplemental
Undertaking and the Restated Shareholders Undertaking, and shall
indemnify the Agent and the Banks against any liability with respect
to or resulting from any delay in paying or omission to pay any such
tax.
6. GOVERNING LAW AND JURISDICTION
(A) Governing Law: This Supplemental Undertaking shall be governed by, and
construed in accordance with, the laws of Singapore.
(B) Singapore Courts: For the benefit of the Agent and each Bank, all the
parties irrevocably agree that the courts of Singapore are to have jurisdiction
to settle any disputes which may arise out of or in connection with this
Supplemental Undertaking and that, accordingly, any legal action or proceedings
arising out of or in connection with this Supplemental Undertaking
("Proceedings") may
<PAGE> 6
4
be brought in those courts and each of the Borrower and the Shareholders
irrevocably submits to the jurisdiction of those courts.
(C) Other Competent Jurisdiction: Nothing in this Clause shall limit the right
of the Agent and/or any Bank to take Proceedings against the Borrower or any of
the Shareholders in any other court of competent jurisdiction nor shall the
taking of Proceedings in one or more jurisdictions preclude the Agent and/or any
Bank from taking Proceedings in any other jurisdiction, whether concurrently or
not.
(D) Venue: Each of the Borrower and the Shareholders irrevocably waives any
objection which it may at any time have to stipulating the venue of any
Proceedings in any court referred to in this Clause and any claim that any such
Proceedings have been brought in an inconvenient forum.
(E) Service of Process: (1) ATE irrevocably appoints Agilent Technologies
Singapore Pte Ltd (now of 438B, Alexandra Road, #05-05, #05-07/12, Alexandra
Technopark B, Singapore 119968, Attention: Legal Counsel) to receive, for it and
on its behalf, service of process in any Proceedings in Singapore. Such service
shall be deemed completed on delivery to the process agent (whether or not it is
forwarded to and received by ATE). If for any reason the process agent ceases to
be able to act as such or no longer has an address in Singapore, ATE irrevocably
agrees to appoint a substitute process agent acceptable to the Agent, and to
deliver to the Agent a copy of the new agent's acceptance of that appointment,
within 30 days. Nothing shall affect the right to serve process in any other
manner permitted by law.
(F) Consent to Enforcement, etc.: Each of the Borrower and the Shareholders
irrevocably and generally consents in respect of any Proceedings anywhere to the
giving of any relief or the issue of any process in connection with those
Proceedings including, without limitation, the making, enforcement or execution
against any assets whatsoever (irrespective of their use or intended use) of any
order or judgment which may be made or given in those Proceedings.
(G) Waiver of Immunity: Each of the Borrower and the Shareholders irrevocably
agrees that, should the Agent or any Bank take any Proceedings anywhere (whether
for an injunction, specific performance, damages or otherwise), no immunity (to
the extent that it may at any time exist, whether on the grounds of sovereignty
or otherwise) from those Proceedings, from attachment (whether in aid of
execution, before judgment or otherwise) of its assets or from execution of
judgment shall be claimed by it or on its behalf or with respect to its assets,
any such immunity being irrevocably waived. Each of the Borrower and the
Shareholders irrevocably agrees that it and its assets are, and shall be,
subject to such Proceedings, attachment or execution in respect of its
obligations under this Supplemental Undertaking.
<PAGE> 7
5
S C H E D U L E
FORM OF AMENDED AND RESTATED
SHAREHOLDERS UNDERTAKING
ORIGINALLY DATED 1ST JULY, 1998
AS AMENDED ON 16TH DECEMBER, 1998 BY
A FIRST SUPPLEMENTAL SHAREHOLDERS UNDERTAKING
AND ON 9TH NOVEMBER, 1999
BY A SECOND SUPPLEMENTAL SHAREHOLDERS UNDERTAKING
CHARTERED SILICON PARTNERS PTE LTD
AS BORROWER
AGILENT TECHNOLOGIES EUROPE B.V.
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
EDB INVESTMENTS PTE LTD
AS SHAREHOLDERS
- AND -
ABN AMRO BANK N.V., SINGAPORE BRANCH
AS AGENT
-----------------------------------------------
AMENDED AND RESTATED
SHAREHOLDERS UNDERTAKING
WITH EFFECT FROM THE EFFECTIVE DATE
(AS DEFINED) UNDER THE SECOND SUPPLEMENTAL SHAREHOLDERS
UNDERTAKING DATED 9TH NOVEMBER, 1999
------------------------------------------------
ALLEN & GLEDHILL,
36, ROBINSON ROAD, #18-01,
CITY HOUSE,
SINGAPORE 068877.
<PAGE> 8
6
C O N T E N T S
<TABLE>
<CAPTION>
CLAUSE HEADING PAGE
- ------ ------- ----
<S> <C> <C>
1. INTERPRETATION
2. UNDERTAKINGS BY SHAREHOLDERS
3. SUBORDINATION
4. AGREEMENT BY BORROWER AND SHAREHOLDERS
5. REPRESENTATIONS AND WARRANTIES
6. UNDERTAKINGS
7. PAYMENTS
8. NATURE OF RIGHTS AND OBLIGATIONS
9. EXPENSES
10. BENEFIT OF AGREEMENT
11. WAIVERS
12. COMMUNICATIONS
13. PARTIAL INVALIDITY
14. GOVERNING LAW AND JURISDICTION
APPENDIX - INFORMATION PACK
</TABLE>
<PAGE> 9
7
THIS AGREEMENT is originally made on 1st July, 1998 BETWEEN:-
(1) CHARTERED SILICON PARTNERS PTE LTD (the "Borrower");
(2) AGILENT TECHNOLOGIES EUROPE B.V. ("ATE"), CHARTERED SEMICONDUCTOR
MANUFACTURING LTD ("CSM") and EDB INVESTMENTS PTE LTD ("EDBI"); and
(3) ABN AMRO BANK N.V., SINGAPORE BRANCH, as agent for and on behalf of the
Banks defined below (in such capacity, the "Agent", which expression shall
include any of its successors in such capacity).
WHEREAS:-
(A) By a Credit Agreement (the Credit Agreement as amended by the First
Supplemental Agreement (as defined below) and the Second Supplemental Agreement
(as defined below), the "Credit Agreement") dated 12th March, 1998 made between
(1) the Borrower, as borrower, (2) ABN AMRO Bank N.V., Singapore Branch,
Bayerische Landesbank Girozentrale, Singapore Branch, Citibank, N.A., Singapore
Branch, Overseas Union Bank Limited and The Sumitomo Bank, Limited, Singapore
Branch, as arrangers, (3) the Guarantor Banks named therein (the "Guarantor
Banks"), as guarantor banks, (4) the Lending Banks named therein (the "Lending
Banks"), as lending banks, and (5) the Agent, as agent, the Guarantor Banks
agreed to grant to the Borrower a S$236,800,000 guarantee facility and the
Lending Banks agreed to grant to the Borrower a US$143,200,000 term loan
facility, upon the terms and subject to the conditions of the Credit Agreement.
(B) (1) CSM is the legal and beneficial owner of 51 per cent. of the issued
shares in the capital of the Borrower.
(2) EDBI is the legal and beneficial owner of 19 per cent. of the issued
shares in the capital of the Borrower.
(3) On 9th November, 1999, ATE will be 100 per cent. legally and
beneficially owned by Hewlett-Packard World Trade, Inc ("HPWT") which is in turn
100 per cent. legally and beneficially owned by Hewlett-Packard Company ("HP").
On 11th November, 1999, ATE will be 100 per cent. legally and beneficially owned
by Agilent Technologies World Trade, Inc. ("ATWT") which will be 100 per cent.
legally and beneficially owned by HPWT and pursuant to a transfer on the same
day ATWT will then be 100 per cent. owned by HP. On 15th November, 1999, ATE
will be 100 per cent. legally and beneficially owned by ATWT, which will be 100
per cent. owned by Agilent Technologies, Inc. ("ATI") which in turn will be
owned 100 per cent. legally and beneficially by HP, thereafter HP will own
between 80 to 85 per cent. of ATI and cease to own any ATI share by May 2000.
ATE is or will be the legal and beneficial owner of 30 per cent. of the issued
shares in the capital of the Borrower.
(C) Each of the Shareholders (as defined below) (after giving due consideration
to the terms and conditions of the Credit Agreement and satisfying itself that
there are reasonable grounds for believing that the entry into by it of this
Agreement will benefit it) has agreed to enter into this Agreement and give the
undertakings provided in this Agreement in consideration of the Guarantor Banks
making available to the Borrower the guarantee facility referred to in Recital
(A) above and the Lending Banks making available to the Borrower the term loan
facility referred to in Recital (A) above.
<PAGE> 10
8
IT IS AGREED as follows:-
1. INTERPRETATION
(A) Definitions: In this Agreement, except to the extent that the context
requires otherwise:-
"Agent" includes its successors in title and assigns and any company with
which it may amalgamate and all other persons for the time being the agent
for the Banks under this Agreement;
"ATI Entities" means ATI or any corporation which is at least 99 per cent.
owned (whether directly or indirectly) by ATI;
"Banks" means the Guarantor Banks and the Lending Banks (and includes their
respective successors and assigns);
"Completion" means the physical completion of the Plant (which shall be
evidenced by the grant of the temporary occupation permit for the Plant
pursuant to the Building Control Act, Chapter 29 of Singapore) and the
commencement of commercial production by the Plant (which shall be the date
on which the Plant achieves a production rate of an aggregate of 2,000
wafers start per month);
"Discharge Date" means the date on which the Senior Indebtedness has been
discharged in full and on which the Borrower and the Shareholders cease to
be under any liability to the Agent and the Banks under or in connection
with the Financing Documents;
"Equity Commitment Percentage" means:-
(1) in relation to CSM, 51/100;
(2) in relation to EDBI, 19/100; and
(3) in relation to ATE, 30/100;
"Excluded Transaction" means any genuine and good faith commercial
transaction entered into between the Borrower and any one or more of the
Shareholders which is not primarily financial in nature and is contemplated
under the Joint Venture Agreement;
"First Supplemental Agreement" means the first supplemental agreement dated
14th December, 1998 between the parties to the Credit Agreement, being
supplemental to the Credit Agreement;
"Information Pack" means the HP/Agilent Re-structuring Information Pack,
substantially in the form of the Appendix;
<PAGE> 11
9
"Joint Venture Agreement" has the meaning ascribed to it in Clause 1(A) of
the Credit Agreement;
"Scheduled Completion Date" means 31st December, 2000;
"Second Supplemental Agreement" means the second supplemental agreement
dated November, 1999 between the parties to the Credit Agreement, being
supplemental to the Credit Agreement as supplemented by the First
Supplemental Agreement;
"Senior Indebtedness" means all sums (whether principal, interest, fee or
otherwise) which are or at any time may be or become due from or owing by
the Borrower to the Agent and/or the Banks (or any of them), whether
actually or contingently, under or in connection with, or which the
Borrower has covenanted to pay or discharge under or pursuant to, any of
the Financing Documents;
"Shareholder Funding" means:-
(1) subscription moneys paid by any Shareholder for shares in the Borrower
for which that Shareholder has subscribed (and which have not been
returned to that Shareholder); or
(2) loans made by any Shareholder to the Borrower which are subordinated
to the Senior Indebtedness in accordance with this Agreement;
"Shareholders" means ATE, CSM and EDBI (and includes their respective
successors and permitted assignees and transferees);
"Subordinated Indebtedness" means all sums made or to be made available by
the Shareholders (or any of them) to the Borrower under or in connection
with this Agreement (including, without limitation, under Clause 2);
"Termination Date" means, in relation to a Shareholder, the earlier of (1)
the date on which that Shareholder has fulfilled all its obligations under
Clause 2(A) and (2) the date on which all Shareholder Funding provided by
it, if any, in accordance with this Agreement has been converted into
shares in the capital of the Borrower; and
"Total Indebtedness" means, at any particular time, all sums (whether
principal, interest, fee or otherwise) which are then due from or owing by
the Borrower to the Agent and the Banks, whether actually or contingently,
under or in connection with, any of the Financing Documents to which the
Borrower is a party.
(B) Construction: All terms and references used in this Agreement and which are
defined or construed in the Credit Agreement but are not defined or construed in
this Agreement shall have the same meaning and construction in this Agreement.
The provisions of Clause 1(C) of the Credit Agreement shall apply to this
Agreement as though they are set out in full in this Agreement (mutatis
mutandis) except that references to the Credit Agreement are to be construed as
references to this Agreement. All references in this Agreement to a Financing
Document include that Financing
<PAGE> 12
10
Document as amended, modified or supplemented from time to time and any document
which amends, modifies or supplements that Financing Document.
(C) Miscellaneous: The headings in this Agreement are inserted for convenience
only and shall be ignored in construing this Agreement. Unless the context
otherwise requires, words denoting the singular number only shall include the
plural and vice versa. References to "Clauses" are to be construed as references
to the clauses of this Agreement. Any reference to a sub-Clause or a paragraph
is to a sub-Clause or paragraph of the Clause in which such reference appears.
2. UNDERTAKINGS BY SHAREHOLDERS
(A) Shareholders Support: In consideration of the Guarantor Banks agreeing, at
the request of the Shareholders, to make available to the Borrower the guarantee
facility referred to in Recital (A) above and the Lending Banks agreeing, at the
request of the Shareholders, to make available to the Borrower the term loan
facility referred to in Recital (A) above and/or the Banks (or any of them)
acting under or in connection with the Credit Agreement:-
(1) Completion Guarantee: (a) subject to sub-paragraph (c) below, (i) each
Shareholder agrees to procure that the Borrower will not abandon the
Project and to procure that Completion is achieved by not later than
the Scheduled Completion Date and (ii) each Shareholder shall
indemnify each Bank and keep each Bank indemnified against any losses,
damages, liabilities, costs and expenses (including, without
limitation, legal costs on a full indemnity basis) suffered by that
Bank if Completion is not achieved by the Scheduled Completion Date
and which would not have been suffered if Completion had been so
achieved;
(b) each Shareholder agrees to undertake such expenditures as are
required in order to ensure its compliance with the provisions of
sub-paragraph (a) above and agrees to take all steps necessary to
ensure that Completion is achieved by not later than the Scheduled
Completion Date (provided that, without prejudice to the obligations
of the Shareholders under sub-paragraph (a)(ii) above or any other
provision of this Agreement, the aggregate amount of the expenditures
by the Shareholders under sub-paragraphs (a)(i) and (b) at any time
shall not exceed the difference between S$720,000,000 and the
aggregate amount of Shareholding Funding provided by the Shareholders
immediately prior to that time); and
(c) any payment obligation of a Shareholder arising under
sub-paragraph (a) or (b) above shall be limited to that Shareholder's
Equity Commitment Percentage of the total amount payable by the
Shareholders provided always that the maximum aggregate liability of
the Shareholders at any time under sub-paragraph (a)(ii) above shall
not exceed the Total Indebtedness at that time;
(2) Equity Support: if, on 31st December, 2001, the ratio of the
Borrowings of the Borrower to its Net Worth is in excess of 1:1, each
Shareholder shall (without demand by the Borrower, the Agent or any
Bank) severally provide Shareholder Funding to the Borrower within 14
days after that date in an
<PAGE> 13
11
amount equal to its Equity Commitment Percentage of the difference
between (a) S$720,000,000 and (b) the aggregate amount of Shareholder
Funding immediately prior to the provision of Shareholder Funding by
that Shareholder on that date; and
(3) DSCR: if, on any Calculation Date, there is a breach by the Borrower
of its obligations under Clause 16(16)(b) or Clause 16(16)(c) of the
Credit Agreement, each Shareholder shall (without demand by the
Borrower, the Agent or any Bank) severally provide Shareholder Funding
to the Borrower on that Calculation Date in an amount equal to its
Equity Commitment Percentage of the lower of (a) the amount (as
determined by the Agent) to enable the Borrower to meet any shortfall
in its ability to meet all payments referred to in component "B" of
the definition of DSCR falling due during the next succeeding
Calculation Period commencing on that Calculation Date and (b) the
difference between (i) S$720,000,000 and (ii) the aggregate amount of
Shareholder Funding immediately prior to the provision of Shareholder
Funding by that Shareholder on that Calculation Date.
(B) Obligations Unconditional: The obligations of the Shareholders under this
Clause are unconditional and absolute, irrespective of (1) any event, however
fundamental, outside the control of the Borrower or any Shareholder or any other
person preventing the Borrower from achieving Completion by the Scheduled
Completion Date, (2) any winding-up, liquidation or dissolution of the Borrower,
(3) any Event of Default or action taken by the Agent or any Bank under the
Financing Documents or any enforcement of any security constituted by any
Financing Document, (4) whether the Project or the business of the Borrower is
being carried on by any receiver, judicial manager or other person and (5) any
other circumstances whatsoever.
(C) Subscription Procedures: (1) The Borrower and each Shareholder shall do all
such things as may be necessary on their part for the provision of Shareholder
Funding required pursuant to this Agreement.
(2) If for any reason whatsoever (including, without limitation, the
winding-up, liquidation or dissolution of the Borrower or failure of the
Borrower to issue shares or to accept payment), a Shareholder does not or cannot
provide Shareholder Funding, that Shareholder will nevertheless, at such times
as are specified in this Clause, pay to the Borrower the amount it would
otherwise have been obliged to pay by way of Shareholder Funding, which shall be
deemed to discharge its obligation to provide that Shareholder Funding.
(3) If a Shareholder makes a payment under paragraph (2), the Borrower
will be liable (on the same terms and conditions) to that Shareholder for the
amount of the payment as if it had constituted Shareholder Funding by way of
subscription moneys for shares or subordinated loans (as appropriate).
(D) Subordinated Loans: If the Shareholders' obligations under this Clause are
fulfilled by means of loans to the Borrower (whether from any of or all the
Shareholders or from some other party), each of the Borrower and the
Shareholders agrees that such loans shall:-
<PAGE> 14
12
(1) be unsecured;
(2) not be subject to any payment of interest until after the Discharge
Date (although interest may accrue on it prior to the Discharge Date);
and
(3) be subordinated to the Senior Indebtedness in the manner set out in
this Agreement (Provided that, notwithstanding anything to the
contrary contained in this Agreement, the aggregate amount of such
loans which shall be subordinated to the Senior Indebtedness in the
manner set out in this Agreement shall not exceed the difference
between S$720,000,000 and the aggregate amount of Shareholding Funding
provided by the Shareholders by way of subscription moneys for
shares).
3. SUBORDINATION
(A) Subordination: The Shareholders and the Borrower hereby agree with and
undertake to the Agent and each of the Banks that, notwithstanding anything to
the contrary contained in any agreement or other document constituting or
evidencing the Subordinated Indebtedness, before the Discharge Date the
Subordinated Indebtedness and the rights and claims of the Shareholders in
relation to the Subordinated Indebtedness are subordinated to the Senior
Indebtedness and the respective rights and claims of the Banks in relation to
the Senior Indebtedness and accordingly, subject as provided in this Agreement,
payments of any amount of the Subordinated Indebtedness (whether in the event of
the winding-up, liquidation or dissolution of the Borrower or otherwise) are
conditional upon all of the Senior Indebtedness having first been fully
satisfied and discharged and no payment of any amount of the Subordinated
Indebtedness which, but for this Agreement, would otherwise fall due for payment
will fall so due, and instead such payment will fall due only if and when the
Senior Indebtedness has been fully satisfied and discharged and, if the
Subordinated Indebtedness or any part thereof is paid by or on behalf of the
Borrower to any Shareholder, that payment shall be forthwith paid over by that
Shareholder to the Agent.
(B) Turnover: Without prejudice to the provisions of sub-Clause (A) above, if
any amount of Subordinated Indebtedness is discharged or purported to be
discharged by payment, repayment, prepayment, set-off or in any other manner in
contravention of sub-Clause (A) above or Clause 4 (and, for the avoidance of
doubt, any payment of consideration, discount or benefit given or credit terms
granted under any of the Excluded Transactions shall be deemed not to be a
discharge or purported discharge of any part of the Subordinated Indebtedness),
the relevant Shareholder shall:-
(1) (if the Shareholder actually receives the amount discharged or
purported to be discharged) immediately pay it to the Agent for
application towards the Senior Indebtedness; and
(2) (if the Shareholder does not, as a result of discharge by set-off or
otherwise, actually receive the amount discharged or purported to be
discharged) pay to the Agent an amount equal to that discharged or
purported to be discharged.
(C) Application: Any amount received by the Agent from any of the Shareholders,
or any person on its behalf, under sub-Clause (A) or (B) above shall be applied
in the following manner and order:-
<PAGE> 15
13
(1) first, in or towards payment of any costs, charges and expenses
incurred by the Agent then due and payable under this Agreement and
the other Financing Documents;
(2) secondly, in or towards payment of the Senior Indebtedness (and in the
event that such sums are insufficient to satisfy in full the Senior
Indebtedness, such sums shall be paid to the Banks in proportion to
their respective shares of the Senior Indebtedness at the time of
payment); and
(3) thirdly, in payment of any surplus to that Shareholder or any other
person lawfully entitled thereto.
4. AGREEMENT BY BORROWER AND SHAREHOLDERS
(A) By Borrower: The Borrower agrees and undertakes that prior to the Discharge
Date, it shall not, without the prior consent in writing of the Agent and the
Banks:-
(1) make any loans or advances, whether directly or indirectly, to any of
the Shareholders or provide any guarantee, indemnity or security for
or in connection with any indebtedness or liabilities of any of the
Shareholders or otherwise enter into any transactions with any of the
Shareholders other than (a) any transaction on arm's length commercial
terms and for valuable consideration or (b) any Excluded Transaction;
(2) secure all or any part of the Subordinated Indebtedness;
(3) redeem, purchase or otherwise acquire any of the Subordinated
Indebtedness;
(4) repay or prepay any, or pay any interest, fees or commissions (but
without prejudice to accrual thereof) on, or by reference to, any of
the Subordinated Indebtedness otherwise than in accordance with the
terms of this Agreement; or
(5) take or omit to take any action whereby the subordination of the
Subordinated Indebtedness or any part thereof to the Senior
Indebtedness may be terminated, impaired or adversely affected.
(B) By Shareholders: Except as otherwise expressly provided in this Agreement,
none of the Shareholders shall, without the prior consent in writing of the
Agent and the Banks, prior to the Discharge Date:-
(1) ask, demand, sue for, take or receive, directly or indirectly, whether
by exercise of set-off, counterclaim or in any other manner, or
recover or enforce payment of any Subordinated Indebtedness (provided
that, for the avoidance of doubt, nothing under this paragraph (1)
shall prohibit any asking, demand, suit for, taking or receipt, or
recovery or enforcement of, any payment due by the Borrower under any
of the Excluded Transactions);
<PAGE> 16
14
(2) take any security from the Borrower or any other person in respect of
any Subordinated Indebtedness and any security taken notwithstanding
the undertaking in this paragraph (2) shall be held by the relevant
Shareholder in trust for the Agent;
(3) make or enforce any claim or right against the Borrower or prove in
competition with the Agent or any Bank in respect of the performance
of any obligation under this Agreement;
(4) assign, transfer, sell, charge or purport to assign, transfer, sell,
charge or otherwise dispose or purport to dispose of the whole or any
part of or any interest in any rights which it may from time to time
and for the time being have against the Borrower in respect of the
Subordinated Indebtedness; or
(5) take or omit to take any action whereby the subordination of the
Subordinated Indebtedness or any part thereof to the Senior
Indebtedness may be terminated, impaired or adversely affected.
5. REPRESENTATIONS AND WARRANTIES
(A) By Shareholders: Each of the Shareholders severally represents and warrants
to and for the benefit of the Agent and each of the Banks in relation to itself
that:-
(1) Status: it is a company duly incorporated and validly existing under
the laws of Singapore (in the case of CSM and EDBI) or the Netherlands
(in the case of ATE), and has the power and authority to own its
assets and to conduct the business which it conducts and/or proposes
to conduct;
(2) Powers: it has the power to enter into, exercise its rights and
perform and comply with its obligations under this Agreement;
(3) Authorisations and Consents: all action, conditions and things
required to be taken, fulfilled and done (including the obtaining of
any necessary consents) in order (a) to enable it lawfully to enter
into, exercise its rights and perform and comply with its obligations
under this Agreement, (b) to ensure that those obligations are valid,
legally binding and enforceable, and (c) to make this Agreement
admissible in evidence in the courts of Singapore and the Netherlands
have been taken, fulfilled and done;
(4) Non-Violation of Laws: its entry into, exercise of its rights and/or
performance of or compliance with its obligations under this Agreement
do not and will not violate, or exceed any power or restriction
granted or imposed by, (a) any law to which it is subject or (b) its
Memorandum and Articles of Association;
(5) Obligations Binding: its obligations under this Agreement are valid,
binding and enforceable;
(6) Non-Violation of Other Agreements: its entry into, exercise of its
rights and/or performance of or compliance with its obligations under
this Agreement do not
<PAGE> 17
15
and will not violate, to an extent or in a manner which has or will
have a material adverse effect on it, any agreement to which it is a
party or which is binding on it or its assets;
(7) Litigation: no litigation, arbitration or administrative proceeding is
current or pending (a) to restrain the entry into, exercise of its
rights under and/or performance or enforcement of or compliance with
its obligations under this Agreement or (b) which has or will have a
material adverse effect on it;
(8) Winding-up: no meeting has been convened for its winding-up or for the
appointment of a receiver, trustee, judicial manager or similar
officer of it, its assets or any of them, no such step is intended by
it and, so far as it is aware, no petition, application or the like is
outstanding for its winding-up or for the appointment of a receiver,
trustee, judicial manager or similar officer of it, its assets or any
of them;
(9) No Default: as far as it is aware after having made all due and proper
enquiries, no Event of Default or Potential Event of Default has
occurred, and it is not in breach of or default under any agreement to
an extent or in a manner which has or will have a material adverse
effect on it; and
(10) Repetition: each of the above representations and warranties will be
correct and complied with in all material respects at all times up to
the Termination Date as if repeated then by reference to the then
existing circumstances.
(B) By CSM: CSM further represents and warrants to and for the benefit of the
Agent and each of the Banks that:-
(1) Shareholding: CSM is (either directly or through any one or more of
its wholly-owned subsidiaries) the legal and beneficial owner of at
least 51 per cent. of the issued share capital of the Borrower and
Singapore Technologies Pte Ltd is (either directly or through any one
of more of its wholly-owned subsidiaries) the legal and beneficial
owner of at least 51 per cent. of the issued share capital of CSM;
(2) Accounts: its audited accounts and consolidated accounts (if any) as
at 31st December, 1996 and for the financial year then ended and as
delivered to the Agent (with copies of the reports and approvals
referred to in (a) below):-
(a) include such financial statements as are required by the laws of
Singapore and, save as stated in the notes thereto, were
prepared, audited, examined, reported on and approved in
accordance with accounting principles and practices generally
accepted in Singapore and consistently applied and in accordance
with the laws of Singapore and its Memorandum and Articles of
Association (or other constitutive documents);
(b) together with those notes, give a true and fair view of its state
of affairs and financial condition and operations (or, in the
case of
<PAGE> 18
16
consolidated accounts, the consolidated state of affairs and
financial condition and operations of CSM and its subsidiaries)
as at that date and for the financial year then ended; and
(c) together with those notes and to the extent required by
accounting principles, standards and practices generally accepted
in Singapore disclose or reserve against all liabilities
(contingent or otherwise) of the relevant person(s) as at that
date and all material unrealised or anticipated losses from any
commitment entered into by the relevant person(s) and which
existed on that date;
(3) No Material Adverse Change: there has been no material adverse change
in its financial condition or operations since 31st December, 1997 nor
in the consolidated financial condition or operations of it and its
subsidiaries since that date; and
(4) Repetition: the representation and warranty in paragraph (1) will be
correct and complied with in all respects so long as any sum remains
to be lent or remains payable under the Credit Agreement as if
repeated then by reference to the then existing circumstances and each
of the representations and warranties in paragraphs (2) and (3) will
be correct and complied with in all material respects at all times up
to the Termination Date as if repeated then by reference to the then
existing circumstances.
(C) By EDBI: EDBI further represents and warrants to and for the benefit of the
Agent and each of the Banks that EDBI is, on the date of this Agreement, the
legal and beneficial owner of not less than 19 per cent. of the issued share
capital of the Borrower.
(D) By ATE: ATE further represents and warrants and for the benefit of the
Agent and each of the Banks that:-
(1) Shareholding: ATE has an effective shareholding in not less than 30
per cent. of the issued share capital of the Borrower and ATI (either
directly or through any one or more of its subsidiaries in which it
owns not less than 95 per cent. of the issued share capital of that
subsidiary) has an effective shareholding in not less than 30 per
cent. of the issued share capital of the Borrower for a period of not
less than four years from the date of the Joint Venture Agreement;
(2) Information Pack: at 13th October, 1999, the information in the
Information Pack relating to, and provided by, ATI was true, complete
and accurate in all material respects;
(3) No Material Adverse Change: there has been no material adverse change
in the financial condition or operations of ATI since 13th October,
1999; and
(4) Repetition: the representation and warranty in paragraph (1) will be
correct and complied with in all respects so long as any sum remains
to be lent or remains payable under the Credit Agreement as if
repeated then by reference
<PAGE> 19
17
to the then existing circumstances and the representation and warranty
in paragraph (2) will be correct and complied with in all material
respects at all times up to the Termination Date as if repeated then
by reference to the then existing circumstances.
6. UNDERTAKINGS
(A) By Shareholders: (1) Each of the Shareholders severally undertakes that, at
all times prior to the Termination Date:-
(a) Litigation: it will, as soon as reasonably practicable, deliver to the
Agent for distribution to the Banks details of any litigation,
arbitration or administrative proceeding which, if to its knowledge
had been current or pending at the date of this Agreement, would have
rendered the representation and warranty in Clause 5(A)(7) incorrect;
(b) Other Information: it will, as soon as reasonably practicable, deliver
to the Agent for distribution to the Banks such other information
relating to its financial condition or business of it as the Agent (or
any Bank through the Agent) may from time to time reasonably require
(except for information of a proprietary nature or which is reasonably
regarded by it as confidential); and
(c) Further Assurance: it will from time to time on reasonable request by
the Agent acting on the instructions of the Majority Banks do or
procure the doing of all such acts and will execute or procure the
execution of all such documents as may be reasonably necessary for
giving full effect to this Agreement or securing to the Agent and the
Banks the full benefits of all rights, powers and remedies conferred
upon the Agent and the Banks in this Agreement.
(2) Each of the Shareholders severally undertakes that, so long as any sum
remains to be lent or remains payable under the Credit Agreement:-
(a) No Winding-up: it will not propose or vote in favour of any resolution
for the winding-up, liquidation or dissolution of the Borrower; and
(b) Dividends: it will exercise all voting rights attaching to the shares
in the capital of the Borrower for the time being held by it so as to
ensure that the Borrower does not declare or pay any dividend
otherwise then in accordance with Clause 16(13) of the Credit
Agreement.
(B) By CSM: (1) CSM further undertakes that, so long as any sum remains to be
lent or remains payable under the Credit Agreement, it will be (either directly
or through any one or more of its wholly-owned subsidiaries) the legal and
beneficial owner of at least 51 per cent. of the issued share capital of the
Borrower and Singapore Technologies Pte Ltd will be (either directly or through
any one or more of its wholly-owned subsidiaries) the legal and beneficial owner
of at least 51 per cent. of the issued share capital of CSM.
<PAGE> 20
18
(2) CSM further undertakes that, at all times prior to the Termination
Date, it will, as soon as available and in any event within 180 days after the
end of each of its financial years (beginning with the current one), deliver to
the Agent enough copies for the Banks of its audited accounts (both consolidated
and unconsolidated) as at the end of and for that financial year.
(C) By EDBI: EDBI further undertakes that, at all times prior to the
Termination Date, it will deliver to the Agent as soon as available and in any
event within 180 days after the end of each of its financial years (beginning
with the current one), enough copies for the Banks of a statement as to its
share capital and reserves as at the end of and for that financial year.
(D) By ATE: (1) ATE further undertakes that, so long as any sum remains to be
lent or remains payable under the Credit Agreement, ATI (either directly or
through one or more of its subsidiaries in which it owns not less than 95 per
cent. of the issued share capital of that subsidiary) will have an effective
shareholding in not less than 30 per cent. of the issued share capital of the
Borrower for a period of not less than four years from the date of the Joint
Venture Agreement.
(2) ATE further undertakes that, at all times prior to the Termination
Date:-
(a) Preparation of Accounts: it will ensure that all accounts of ATI
to be delivered by it under this Agreement are prepared in such
manner that they will:-
(i) include such financial statements as are required by the
laws of the United States of America and, save as stated in
the notes thereto, were prepared, audited, examined,
reported on and approved in accordance with accounting
principles and practices generally accepted in the United
States of America consistently applied and in accordance
with the laws of the United States of America and its
Memorandum and Articles of Association (or other
constitutive documents);
(ii) together with those notes, give a true and fair view of its
state of affairs and financial condition and operations
(or, in the case of consolidated accounts, the consolidated
state of affairs and financial condition and operations of
ATI and its subsidiaries) as at that date and for the
financial year then ended; and
(iii) together with those notes and to the extent required by
accounting principles, standards and practices generally
accepted in the United States of America disclose or
reserve against all liabilities (contingent or otherwise)
of the relevant person(s) as at that date and all material
unrealised or anticipated losses from any commitment
entered into by the relevant person(s) and which existed on
that date; and
(b) it will, as soon as available and in any event within 180 days
after the end of each of its financial years (beginning with the
current one), deliver, or cause to be delivered, to the Agent
enough copies for the Banks (on the basis of one copy for each
Bank) of the published annual report of ATI as at the end of and
for that financial year.
<PAGE> 21
19
7. PAYMENTS
(A) Taxes: (1) All sums payable by the Shareholders under this Agreement shall
be paid (1) free of any restriction or condition, (2) free and clear of and
(except to the extent required by law) without any deduction or withholding for
or on account of any tax and (3) without deduction or withholding (except to the
extent required by law) on account of any other amount, whether by way of
set-off or otherwise.
(2) If any of the Shareholders or any other person (whether or not a party
to, or on behalf of a party to, this Agreement) must at any time deduct or
withhold any tax or other amount from any sum paid or payable by, or received or
receivable from, that Shareholder under this Agreement, that Shareholder shall
pay such additional amount as is necessary to ensure that the Agent or, as the
case may be, the Bank to which that sum is due, receives on the due date and
retains (free from any liability other than tax on its own overall net income) a
net sum equal to what it would have received and so retained had no such
deduction or withholding been required or made.
(3) If any of the Shareholders or any other person (whether or not a party
to, or on behalf of a party to, this Agreement) must at any time pay any tax or
other amount on, or calculated by reference to, any sum received or receivable
by the Agent or, as the case may be, any of the Banks from that Shareholder
under this Agreement (except for a payment by the Agent or a Bank of tax on its
own overall net income), that Shareholder shall pay or procure the payment of
that tax or other amount before any interest or penalty becomes payable or, if
that tax or other amount is payable and paid by the Agent or any Bank, shall
reimburse it on demand for the amount paid by it.
(4) Within 30 days after paying any sum from which it is required by law
to make any deduction or withholding, and within 30 days after the due date of
payment of any tax or other amount which it is required by paragraph (3) above
to pay, the relevant Shareholder shall deliver to the Agent evidence reasonably
satisfactory to the Agent or, as the case may be, the relevant Bank of that
deduction, withholding or payment and (where remittance is required) of the
remittance thereof to the relevant taxing or other authority.
(5) As soon as any of the Shareholders is aware that any such deduction,
withholding or payment is required (or any change in any such requirement), that
Shareholder shall notify the Agent.
(B) Goods and Services Tax: Each of the Shareholders shall also pay to the
Agent and each Bank on demand, in addition to any amount payable by that
Shareholder under this Agreement, any goods and services, value added or other
similar tax payable in respect of that amount (and any reference in this
Agreement to that amount shall be deemed to include any such taxes payable in
addition to it).
(C) Refund of Tax Credits: If:-
(1) any Shareholder makes a payment under sub-Clause (A)(2) or (3) (a "Tax
Payment") in respect of a payment to a Bank under this Agreement; and
(2) that bank determines in its absolute discretion that it has obtained a
refund of tax or obtained and used a credit against tax on its overall
net income (a "Tax Credit") which that Bank in its absolute discretion
is able to identify as attributable to that Tax Payment,
<PAGE> 22
20
then, if in its absolute discretion it can do so without any adverse
consequences for that Bank, that Bank shall reimburse that Shareholder such
amount as that Bank in its absolute discretion determines to be such proportion
of that Tax Credit as will leave that Bank (after that reimbursement) in no
better or worse position in respect of its worldwide tax liabilities than it
would have been in if no Tax Payment had been required. A Bank shall have an
absolute discretion as to whether to claim any Tax Credit (and, if it does
claim, the extent, order and manner in which it does so) and whether any amount
is due from it under this sub-Clause (C) (and, if so, what amount and when). No
Bank shall be obliged to disclose any information regarding its tax affairs and
computations.
(D) Currency Indemnity: (1) Any amount received or recovered by the Agent or
any Bank in respect of any sum expressed to be due to it from any Shareholder
under or in connection with this Agreement in a currency (such currency being
referred to as the "Relevant Currency") other than the currency in which such
sum is expressed to be due under this Agreement (such currency being referred to
as the "Currency of Account") whether as a result of, or of the enforcement of,
a judgment or order of a court or tribunal of any jurisdiction, in the
winding-up of that Shareholder or otherwise, shall only constitute a discharge
to that Shareholder to the extent of the amount in the Currency of Account which
the recipient is able, in accordance with its usual practice, to purchase with
the amount of the Relevant Currency so received or recovered on the date of that
receipt or recovery (or, if it is not practicable to make that purchase on that
date, on the first date on which it is practicable to do so).
(2) If that amount in the Currency of Account is less than the amount of
the Currency of Account due to the recipient under or in connection with this
Agreement, that Shareholder shall indemnify it against any loss sustained by it
as a result. In any event, that Shareholder shall indemnify the recipient
against the cost of making any such purchase. For the purpose of this sub-Clause
(D), it will be sufficient for the recipient to demonstrate that it would have
suffered a loss had an actual exchange or purchase been made.
(3) Each of the indemnities in this sub-Clause (D) constitutes a separate
and independent obligation from the other obligations in this Agreement, shall
give rise to a separate and independent cause of action, shall apply
irrespective of any indulgence granted by the Agent, any Arranger and/or any
Bank and shall continue in full force and effect despite any judgment, order,
claim or proof for a liquidated amount in respect of any sum due under this
Agreement or any other judgment or order.
8. NATURE OF RIGHTS AND OBLIGATIONS
(A) No Release: The obligations of the Shareholders under this Agreement
(excluding, for the avoidance of doubt, any obligation of the Shareholders under
this Agreement which has been discharged) shall not be discharged, impaired or
otherwise affected by any act, omission, matter or thing which, but for this
sub-Clause (A), may operate to release or otherwise exonerate any of the
Shareholders from its obligations under this Agreement in whole or in part,
including without limitation and whether or not known to it or any other
person:-
(1) any variation in or to the Project;
(2) any time, indulgence, concession waiver or consent at any time given
by the Agent and/or any of the Banks in respect of the Senior
Indebtedness or any part thereof or to the Borrower, any Shareholder
or any other person;
<PAGE> 23
21
(3) any amendment or supplement to any provision of any Financing Document
or any other agreement, security, guarantee or indemnity;
(4) the making or the absence of any demand on the Borrower, any
Shareholder or any other person for payment;
(5) the enforcement or absence of enforcement of or release of any of the
Financing Documents or any other agreement, security, guarantee or
indemnity held in respect of the Senior Indebtedness;
(6) the winding-up, insolvency, bankruptcy, amalgamation, reconstruction
or reorganisation of the Borrower, any Shareholder or any other
person;
(7) the illegality, invalidity or unenforceability of or any defect in any
provision of any Financing Document or any other agreement, security,
guarantee or indemnity or any of the obligations of the Borrower, any
Shareholder or any other person thereunder, whether on the grounds of
ultra vires, not being in the interests of the Borrower or any other
person, not having been duly authorised, executed or delivered by the
Borrower or any other person or for any reason whatsoever; or
(8) any other act, event or omission which but for this provision would or
might operate to impair or discharge the obligations of any
Shareholder under this Agreement.
(B) Continuing Obligations: The obligations of the Shareholders and the
Borrower under this Agreement are continuing obligations, will not be discharged
by any intermediate payment and will remain in full force and effect until the
obligations have been fulfilled (for the avoidance of doubt, nothing in this
sub-Clause (B) shall affect any obligations of the Borrower or any Shareholder
which has been discharged by the due and proper performance by the Borrower or
such Shareholder of such obligations).
(C) Reinstatement: (1) Any settlement or discharge between the Agent or any of
the Banks and any of the Shareholders shall be conditional upon no security or
payment to the Agent or such Bank by the Borrower or any other person being
avoided or reduced by virtue of any provision or enactment relating to
bankruptcy, insolvency or winding-up for the time being in force or by virtue of
any obligation to give effect to any preference or priority and the Agent or
such Bank (as the case may be) shall be entitled to recover the value or amount
of any such security or payment from that Shareholder subsequently as if such
settlement or discharge had not occurred.
(2) Without prejudice to the provisions of paragraph (2), where any
discharge (whether in respect of the obligations of any Shareholder or any
security for those obligations or otherwise) is made in whole or in part or any
arrangement is made on the faith of any payment, security or other disposition
which is avoided or must be repaid on bankruptcy, insolvency or winding-up or
otherwise without limitation, the liability of the Shareholders under this
Agreement shall, unless the Agent and the Banks agree otherwise, continue as if
the discharge or arrangement, as the case may be, had not occurred.
<PAGE> 24
22
(D) Failure by Shareholder: The failure of a Shareholder or the Borrower to
perform or comply with any of its obligations under this Agreement shall not
release any other Shareholder or the Borrower of its obligations under this
Agreement.
(E) Immediate Recourse: Each Shareholder waives any right which it may have of
first requesting the Agent or any of the Banks to proceed against or enforce any
other rights or security or claim payment from the Borrower, any other
Shareholder or any other person before claiming from the Shareholder under this
Agreement.
(F) Additional Security: This Agreement shall be in addition to and shall not
in any way be prejudiced by any other security now or hereafter held by the
Agent or any Bank as security for the obligations of the Borrower under the
Credit Agreement.
9. EXPENSES
(A) By Shareholders: Each of the Shareholders shall pay on demand all costs and
expenses (including legal expenses on a full indemnity basis) reasonably
incurred by the Agent and/or any of the Banks in protecting or enforcing any
rights against it under this Agreement.
(B) By Borrower: The Borrower shall pay on demand all costs and expenses
(including legal expenses on a full indemnity basis) reasonably incurred by the
Agent and/or any of the Banks in protecting or enforcing any rights against it
under this Agreement.
10. BENEFIT OF AGREEMENT
(A) Shareholders/Borrower: The Borrower may not assign or transfer any of its
rights, benefits or obligations under this Agreement. None of the Shareholders
may assign or transfer any of their respective rights, benefits or obligations
under this Agreement other than in the following manner and upon the following
terms:-
(1) in the case of EDBI, it may transfer all of its rights, benefits and
obligations under this Agreement to any of its wholly-owned
subsidiaries which has acquired all the shares owned by EDBI in the
Borrower, provided that (a) the transferee shall have agreed in
writing to the other parties to this Agreement to assume all the
obligations of EDBI under this Agreement and (b) EDBI and the
transferee shall have undertaken to the other parties to this
Agreement to ensure that, in the event that the transferee ceases to
be a wholly-owned subsidiary of EDBI, the transferee shall transfer
all its rights, benefits and obligations under this Agreement to EDBI
or a wholly-owned subsidiary of EDBI; and
(2) in the case of ATE, it may transfer all of its rights, benefits and
obligations under this Agreement to a ATI Entity (provided that, at
the time of such transfer, ATI owns at least 95 per cent. of the
issued share capital of such ATI Entity) which has acquired all the
shares owned by ATE in the Borrower, provided that (a) such ATI Entity
shall have undertaken to the other parties to this Agreement to assume
all the obligations of ATE under this Agreement and (b) ATE and such
ATI Entity shall have undertaken to the other parties to this
Agreement to ensure that, in the event ATI ceases to own at least 95
per
<PAGE> 25
23
cent. of the issued share capital of such ATI Entity, such ATI Entity
shall transfer all its rights, benefits and obligations under this
Agreement to ATI, ATE or another ATI Entity (of which ATI owns at
least 95 per cent. of its issued share capital).
(B) Agent/Banks: (1) Each of the Agent and the Banks may assign all or part of
its rights under this Agreement without the consent of any party to any assignee
or transferee under the Credit Agreement (but the assignor shall give to the
Borrower prior notice of such assignment or transfer). Any such assignee shall
be entitled to the full benefit of this Agreement to the same extent as if it
were an original party in respect of the rights assigned to it.
(2) None of the Shareholders and the Borrower shall be liable for any
costs or expenses which may be incurred in connection with any assignment or
transfer of any of the rights of the Agent or any of the Banks under this
Agreement.
(C) Disclosure of Information: The Agent or any of the Banks may disclose on a
confidential basis to any other party to the Financing Documents or any of its
other branches or its headquarters or to an actual or potential New Lending
Bank, assignee, sub-participant or the like such information about the Borrower,
any Shareholder or any other person as it may think fit and may disclose to such
party such information about the Borrower or any of the Shareholders with the
prior consent in writing of the Borrower or, as the case may be, such
Shareholder (Provided that, at any time and from time to time after the making
of a declaration under Clause 17(B) of the Credit Agreement, (1) no such consent
will be required for any such disclosure and (2) the Agent or the relevant Bank
making any such disclosure shall, if practicable, consult with the Borrower or,
as the case may be, such Shareholder prior to making any such disclosure and
shall consider in good faith any request from the Borrower or, as the case may
be, such Shareholder to the Agent or such Bank not to make any such disclosure
or to delay making any such disclosure).
(D) Limitation on Certain Obligations: If, at the time of any assignment or
transfer by a Bank, circumstances exist which would oblige any Shareholder to
pay to the assignee or transfer under Clause 7(A) any sum in excess of the sum
(if any) which it would have been obliged to pay to that Bank under that Clause
in the absence of that assignment or transfer, that Shareholder shall not be
obliged to pay that excess.
11. WAIVERS
No failure on the part of the Agent or any of the Banks to exercise, and no
delay on its part in exercising, any right or remedy under this Agreement will
operate as a waiver thereof, nor will any single or partial exercise of any
right or remedy preclude any other or further exercise thereof or the exercise
of any other right or remedy. The rights and remedies provided in this Agreement
are cumulative and not exclusive of any other rights or remedies (whether
provided by law or otherwise).
12. COMMUNICATIONS
(A) Addresses: Each communication under this Agreement shall be made by fax,
telex or otherwise in writing. Each communication or document to be delivered to
any party under this Agreement shall be sent to that party at the fax number,
telex number or address, and marked for the attention of the person (if any),
from time to time designated by that party to the Agent (or, in the case of the
Agent, by it to each other party) for the purpose of this Agreement. The initial
fax
<PAGE> 26
24
number, telex number, address and person (if any) so designated by each party
are set out against its name at the end of this Agreement.
(B) Deemed Delivery: Any communication under this Agreement shall be deemed to
have been received (if sent by fax or telex) on the day of despatch or (in any
other case) when left at the address required by sub-Clause (A) above or within
five days after being sent by prepaid post (by airmail if to another country)
addressed to it at that address.
13. PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any provision of this
Agreement under the law of any jurisdiction shall not affect its legality,
validity or enforceability under the law of any other jurisdiction nor the
legality, validity or enforceability of any other provision.
14. GOVERNING LAW AND JURISDICTION
(A) Governing Law: This Agreement shall be governed by, and construed in
accordance with, the laws of Singapore.
(B) Singapore Courts: For the benefit of the Agent and each Bank, all the
parties irrevocably agree that the courts of Singapore are to have jurisdiction
to settle any disputes which may arise out of or in connection with this
Agreement and that, accordingly, any legal action or proceedings arising out of
or in connection with this Agreement ("Proceedings") may be brought in those
courts and each of the Borrower and the Shareholders irrevocably submits to the
jurisdiction of those courts.
(C) Other Competent Jurisdiction: Nothing in this Clause shall limit the right
of the Agent and/or any Bank to take Proceedings against the Borrower or any of
the Shareholders in any other court of competent jurisdiction nor shall the
taking of Proceedings in one or more jurisdictions preclude the Agent and/or any
Bank from taking Proceedings in any other jurisdiction, whether concurrently or
not.
(D) Venue: Each of the Borrower and the Shareholders irrevocably waives any
objection which it may at any time have to the laying of the venue of any
Proceedings in any court referred to in this Clause and any claim that any such
Proceedings have been brought in an inconvenient forum.
(E) Service of Process: (1) ATE irrevocably appoints Agilent Technologies
Singapore Pte Ltd (now of 438B, Alexandra Road, #05-05, #05-07/12, Alexandra
Technopark B, Singapore 119968, Attention: Legal Counsel) to receive, for it and
on its behalf, service of process in any Proceedings in Singapore. Such service
shall be deemed completed on delivery to the process agent (whether or not it is
forwarded to and received by ATE). If for any reason the process agent ceases to
be able to act as such or no longer has an address in Singapore, ATE irrevocably
agrees to appoint a substitute process agent acceptable to the Agent, and to
deliver to the Agent a copy of the new agent's acceptance of that appointment,
within 30 days. Nothing shall affect the right to serve process in any other
manner permitted by law.
(F) Consent to Enforcement, etc.: Each of the Borrower and the Shareholders
irrevocably and generally consents in respect of any Proceedings anywhere to the
giving of any relief or the issue
<PAGE> 27
25
of any process in connection with those Proceedings including, without
limitation, the making, enforcement or execution against any assets whatsoever
(irrespective of their use or intended use) of any order or judgment which may
be made or given in those Proceedings.
(G) Waiver of Immunity: Each of the Borrower and the Shareholders irrevocably
agrees that, should the Agent or any Bank take any Proceedings anywhere (whether
for an injunction, specific performance, damages or otherwise), no immunity (to
the extent that it may at any time exist, whether on the grounds of sovereignty
or otherwise) from those Proceedings, from attachment (whether in aid of
execution, before judgment or otherwise) of its assets or from execution of
judgment shall be claimed by it or on its behalf or with respect to its assets,
any such immunity being irrevocably waived. Each of the Borrower and the
Shareholders irrevocably agrees that it and its assets are, and shall be,
subject to such Proceedings, attachment or execution in respect of its
obligations under this Agreement.
<PAGE> 28
30
IN WITNESS WHEREOF this Supplemental Undertaking has been entered into on
the date stated at the beginning.
The Shareholders
The Common Seal of )
CHARTERED SEMICONDUCTOR )
MANUFACTURING LTD )
was hereunto affixed )
in the presence of:- )
/s/ BARRY WAITE Director
- -------------------------------
/s/ CHUA SU LI Secretary
- -------------------------------
60, Woodlands Industrial Park D,
Street 2,
Singapore 738406.
Fax Number: 362 2909
Attention: Legal Department
The Common Seal of )
EDB INVESTMENTS PTE LTD )
was hereunto affixed )
in the presence of:- )
/s/ LIEW HENG SAN Director
- --------------------------------
/s/ SARA LIEW Secretary
- --------------------------------
250, North Bridge Road,
#27-04, Raffles City Tower,
Singapore 179101.
Fax Number: 336 2503
Attention: General Manager
<PAGE> 29
31
Signed, Sealed and Delivered )
By /s/ R.E.J. De BOER )
---------------------------------- )
for and on behalf of )
AGILENT TECHNOLOGIES EUROPE B.V. )
in the presence of:- )
/s/ J.C.A. VAN DIEMEN
Startbaan 16,
1187 XR AMSTELVEEN,
The Netherlands.
Fax Number:
Attention: Legal Counsel
The Retiring Shareholder
Signed for and on behalf of [SIGNATURE ILLEGIBLE]
HEWLETT-PACKARD EUROPE B.V. )
in the presence of:- )
/s/ J.C.A. VAN DIEMEN
Startbaan 16,
1187 XR AMSTELVEEN,
The Netherlands.
Fax Number: (3120) 547 7703
Attention: Legal Department
<PAGE> 30
32
The Borrower
The Common Seal of )
CHARTERED SILICON PARTNERS PTE LTD )
was hereunto affixed )
in the presence of:- )
/s/ Chia Song Hwee Director
- ------------------------------------
/s/ Barry Waite Director
- ------------------------------------
60, Woodland Industrial Park D,
Street 2,
Singapore 738406.
Fax Number: 362 2909
Attention: Legal Department
The Agent
Signed, Sealed and Delivered by /s/ Rajan Ray )
and /s/ Goh Chong Theng )
as )
attorneys for and on behalf of )
ABN AMRO BANK N.V., )
SINGAPORE BRANCH )
in the presence of:- )
[Signature Illegible]
63, Chulia Street, 5th Floor,
Singapore 049514.
Fax Number: 536 7816
Telex Number: RS 24396
Attention: Ms Sally Loh/Ms Patricia Teo
<PAGE> 1
EXHIBIT 10.4
EXECUTION COPY
9TH NOVEMBER 1999
CHARTERED SILICON PARTNERS PTE LTD
AND
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
AND
HEWLETT-PACKARD COMPANY
AND
AGILENT TECHNOLOGIES, INC.
==========================================================
NOVATION AND AMENDMENT AGREEMENT
relating to an Assured Supply and Demand Agreement 64-225
dated 4 July 1997 (the ASADA 64-225) and an Amendment
Agreement (No.1) to the ASADA 64-225 dated 5 November 1998
and an Amendment Agreement (No.2) to the ASADA 64-225 dated
17 June 1999
===========================================================
<PAGE> 2
EXECUTION COPY
THIS AGREEMENT is made as of 9th November 1999
BETWEEN:
(1) CHARTERED SILICON PARTNERS PTE LTD a company incorporated in Singapore,
with its principal offices at 60 Woodlands Industrial Park D, Street 2,
Singapore 738406 (the COMPANY);
(2) CHARTERED SEMICONDUCTOR MANUFACTURING LTD a company incorporated in
Singapore with its principal offices at 60 Woodlands Industrial Park D,
Street 2, Singapore 738406 (CSM);
(3) HEWLETT-PACKARD COMPANY a company incorporated in Delaware USA whose
registered office is at 3000 Hanover Street, Palo Alto California 94304
(HP); and
(4) AGILENT TECHNOLOGIES, INC. a company incorporated in Delaware, USA whose
registered office is at 1209 Orange Street, Wilmington, Delaware 19801
Country of New Castle in the State of Delaware, USA (AGILENT).
WHEREAS:
(A) The Company, CSM and HP had entered into an Assured Supply and Demand
Agreement 64-225 dated 4 July 1997 (the ASADA 64-225) relating to the
provision of wafer manufacturing capacity by the Company and CSM to HP
and an Amendment Agreement (No.1) to the ASADA 64-225 dated 5 November
1998 and an Amendment Agreement (No.2) to the ASADA 64-225 dated 17 June
1999 (collectively, the CONTRACT).
(B) As a consequence of the global restructuring of HP and its group of
companies in November 1999, HP's business involving the manufacturing
and sale of semiconductor wafers and integrated circuits which are the
subject of the Contract, will be transferred to Agilent as on or around
9 November 1999.
(C) HP wishes to be released and discharged from the Contract and the
parties to this Agreement have agreed to the novation of the Contract
and to the substitution of Agilent in place of HP as a party to the
Contract.
<PAGE> 3
IT IS AGREED AS FOLLOWS:
NOVATION
1.1 With effect from the date hereof:
(a) HP shall cease to be a party to the Contract and Agilent shall
become a party to it in place of HP;
(b) Agilent undertakes with CSM and the Company to accept, observe,
perform and discharge all liabilities and obligations of HP
howsoever arising under the Contract in substitution for HP
whether arising on, before or after the date of this Agreement as
if Agilent had at all times been a party to the Contract;
(c) each of CSM and the Company agree to the substitution of Agilent
in place of HP and that Agilent may exercise and enjoy all the
rights of HP arising under the Contract in substitution for HP,
and whether arising on or after the date of this Agreement as if
Agilent had at all times been a party to the Contract; and
(d) each of CSM and the Company hereby releases and discharges HP
from all claims and demands, and from each of its liabilities and
obligations, howsoever arising under the Contract to the extent
assumed by Agilent pursuant to this Agreement and accepts the
like liabilities and obligations to it of Agilent in place of HP.
AMENDMENT OF CONTRACT
2. The Contract is amended as of the date hereof, by:
(i) substituting "Agilent" for "HP" wherever "HP" shall appear in
the Contract;
(ii) substituting "Agilent Technologies Europe B.V." for
"Hewlett-Packard Europe B.V." wherever these words shall appear
in the Contract;
(iii) inserting in Recital A on page 1 of the ASADA 64-225 after the
words "13 March 1997", the words, "(by which Agilent became a
party pursuant to a Novation and Amendment Agreement made as of
the date hereof)";
(iv) inserting in the section headed "Definitions" of the ASADA 64-225
the following as the first definition:
"Agilent" shall mean Agilent Technologies, Inc, a company
incorporated in Delaware, U.S.A. with its registered office at
1209 Orange Street, Wilmington, Delaware 19801 Country of New
Castle in the State of Delaware, USA;
<PAGE> 4
(v) Deleting the address and facsimile numbers of HP in clause 11 of
the ASADA 64-225 and replacing the same with the following:
"AGILENT TECHNOLOGIES, INC.
1209 Orange Street,
Wilmington
Delaware 19801
Country of New Castle in the State of Delaware
USA
Attn: General Manager, Integrated Circuit Business Division"
CONFIDENTIALITY
3. With effect from the date hereof HP, in consideration of the other
parties entering into this Agreement, hereby agrees (as a separate,
independent and collateral contract with all the other parties to this
Agreement) to be bound by the provisions of clause 8 of the ASADA
64-225, as if it had remained a party to the ASADA 64-225.
COUNTERPARTS
4. This Agreement may be executed in any number of counterparts and by the
parties to it on separate counterparts, each of which is an original but
all of which together constitute one and the same instrument.
GOVERNING LAW
5. This Agreement and the relationship between the parties shall be
governed by, and interpreted in accordance with, the laws of Singapore.
AS WITNESS this Agreement has been signed by the duly authorised representatives
of the parties the day and year first before written.
SIGNED by Chia Song Hwee ) /s/ Chia Song Hwee
for and on behalf of )
CHARTERED SILICON PARTNERS PTE LTD )
SIGNED by Barry Waite ) /s/ Barry Waite
for and on behalf of )
CHARTERED SEMICONDUCTOR MANUFACTURING LTD )
<PAGE> 5
SIGNED by Ann O. Baskins ) /s/ Ann O. Baskins
for and on behalf of )
HEWLETT-PACKARD COMPANY )
SIGNED by D. Craig Nordlund ) /s/ D. Craig Nordlund
for and on behalf of )
AGILENT TECHNOLOGIES, INC. )
<PAGE> 1
EXHIBIT 10.5
EXECUTION COPY
9TH NOVEMBER 1999
CHARTERED SILICON PARTNERS PTE LTD
And
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
And
HEWLETT-PACKARD COMPANY
And
AGILENT TECHNOLOGIES, INC.
===========================================================
NOVATION AND AMENDMENT
AGREEMENT
relating to a License and Technology Transfer Agreement
64-224 dated 4 July 1997
===========================================================
<PAGE> 2
EXECUTION COPY
THIS AGREEMENT is made as of 9th November 1999
BETWEEN:
(1) CHARTERED SILICON PARTNERS PTE LTD a company incorporated in Singapore,
with its principal offices at 60 Woodlands Industrial Park D, Street 2,
Singapore 738406 (the COMPANY);
(2) CHARTERED SEMICONDUCTOR MANUFACTURING LTD a company incorporated in
Singapore with its principal offices at 60 Woodlands Industrial Park D,
Street 2, Singapore 738406 (CSM);
(3) HEWLETT-PACKARD COMPANY a company incorporated in Delaware, USA whose
registered office is at 3000 Hanover Street, Palo Alto, California 94304
(HP); and
(4) AGILENT TECHNOLOGIES, INC. a company incorporated in Delaware, USA whose
registered office is at 1209 Orange Street, Wilmington, Delaware 19801
County of New Castle in the State of Delaware, USA (AGILENT).
WHEREAS:
(A) The Company, CSM and HP had entered into a License and Technology
Transfer Agreement 64-224 dated 4 July 1997 relating to the licensing of
intellectual property rights and transfer of technical information owned
or controlled by HP in connection with the manufacturing of
semiconductor wafers and integrated circuits to the Company and CSM with
subsequent amendments of Annex A-1, Annex B-1 and Annex C-2 thereto in
April 1999 (the CONTRACT).
(B) As a consequence of the global restructuring of HP and its group of
companies in November 1999, HP's ownership and control of the various
intellectual property rights and technical information in connection
with the manufacturing of semiconductor wafers and integrated circuits
which are the subject of the Contract, will be transferred to Agilent on
or around 1 November 1999, pursuant to which HP will have the rights to
continue to perform its obligations under the Contract until the date of
this Deed.
(C) HP wishes to be released and discharged from the Contract and the
parties to this Agreement have agreed to the novation of the Contract
and to the substitution of Agilent in place of HP as a party to the
Contract.
IT IS AGREED
<PAGE> 3
NOVATION
1.1 With effect from the date hereof:
(a) HP shall cease to be a party to the Contract and Agilent shall
become a party to it in place of HP;
(b) Agilent undertakes with CSM and the Company to accept, observe,
perform and discharge all liabilities and obligations of HP
howsoever arising under the Contract in substitution for HP
whether arising on, before or after the date of this Agreement
as if Agilent had at all times been a party to the Contract;
(c) each of CSM and the Company agree to the substitution of Agilent
in place of HP and that Agilent may exercise and enjoy all the
rights of HP arising under the Contract in substitution for HP,
and whether arising on or after the date of this Agreement as if
Agilent had at all times been a party to the Contract; and
(d) each of CSM and the Company hereby releases and discharges HP
from all claims and demands, and from each of its liabilities
and obligations, howsoever arising under the Contract to the
extent assumed by Agilent pursuant to this Agreement and accepts
the like liabilities and obligations to it of Agilent in place
of HP.
AMENDMENT OF CONTRACT
2. The Contract is amended as of the date hereof, by:
(i) substituting "Agilent" for "HP" wherever "HP" shall appear in
the Contract;
(ii) substituting "Agilent Technologies Europe B.V." for
"Hewlett-Packard Europe B.V." wherever these words shall appear
in the Contract; and
(iii) Deleting the address and facsimile numbers of HP in clause 10.9
of the Contract and replacing the same with the following:
"AGILENT TECHNOLOGIES, INC.
1209 Orange Street,
Wilmington
Delaware 19801
County of New Castle in the State of Delaware
USA
Attn: General Manager, Integrated Circuit Business Division"
CONFIDENTIALITY
3. With effect from the date hereof HP, in consideration of the other
parties entering into this Agreement, hereby agrees (as a separate,
independent and collateral contract with all the other parties to this
Agreement) to be bound by the provisions of clause 9 of the License and
Technology Transfer Agreement 64-224, as if it had remained a party to
the License and Technology Transfer Agreement 64-224.
<PAGE> 4
CONSENT CHANGE IN CONTROL OF AGILENT
4. The Company and CSM hereby consents to the following proposed change in
control of Agilent and waives any right it may have to treat the same as
a breach by Agilent of the provisions of clause 10.5 of the License and
Technology Transfer Agreement 64-224:
(i) As at the date hereof, Agilent is wholly owned by HP and will
remain wholly owned by HP until the shares of Agilent are listed
on the New York Stock Exchange around the middle of November
1999, with not more than 20 per cent of its shares offered to
the public and the remaining retained by HP; and
(ii) Thereafter, it is proposed that HP will dispose of its shares in
Agilent to the public so that by May 2000, HP will cease to hold
any shares in Agilent.
COUNTERPARTS
5. This Agreement may be executed in any number of counterparts and by the
parties to it on separate counterparts, each of which is an original but
all of which together constitute one and the same instrument.
GOVERNING LAW
5. This Agreement and the relationship between the parties shall be
governed by, and interpreted in accordance with, the laws of Singapore.
<PAGE> 5
AS WITNESS this Agreement has been signed by the duly authorised representatives
of the parties the day and year first before written.
SIGNED by Chia Song Hwee ) /s/ Chia Song Hwee
for and on behalf of )
CHARTERED SILICON PARTNERS PTE LTD )
SIGNED by Barry Waite ) /s/ Barry Waite
for and on behalf of )
CHARTERED SEMICONDUCTOR MANUFACTURING LTD )
SIGNED by Ann O. Baskins ) /s/ Ann O. Baskins
for and on behalf of )
HEWLETT-PACKARD COMPANY )
SIGNED by D. Craig Nordlund ) /s/ D. Craig Nordlund
for and on behalf of )
AGILENT TECHNOLOGIES, INC. )
<PAGE> 1
EXHIBIT 10.6
EXECUTION COPY
9TH NOVEMBER 1999
(1) CHARTERED SEMICONDUCTOR MANUFACTURING LTD; AND
EDB INVESTMENTS PTE LTD
........(together the CONTINUING PARTIES)
(2) HEWLETT-PACKARD EUROPE B.V...
........(the TRANSFEROR)
(3) AGILENT TECHNOLOGIES EUROPE B.V.
........(the Transferee)
==============================================================
DEED OF ACCESSION AND RATIFICATION
relating to the Joint Venture Agreement dated 13 March 1997
as amended by Amendment (No.1) dated 4 July 1997 and
Amendment (No. 2) dated 1 October 1999, in respect of
Chartered Silicon Partners Pte Ltd
==============================================================
<PAGE> 2
EXECUTION COPY
THIS DEED is made as of 9th November 1999
BETWEEN:
(1) CHARTERED SEMICONDUCTOR MANUFACTURING LTD of 60 Woodlands Industrial
Park D, Street 2, Singapore 738406 ; and
EDB INVESTMENTS PTE LTD of 250 North Bridge Road #27-04 Raffles City
Tower Singapore 179101;
(together the CONTINUING PARTIES)
(2) HEWLETT-PACKARD EUROPE B.V. of Stratbaan 16,1187 XR, Amstelveen, The
Netherlands (the TRANSFEROR); and
(3) AGILENT TECHNOLOGIES EUROPE B.V. of Stratbaan 16,1187 XR, Amstelveen,
The Netherlands (the TRANSFEREE).
WHEREAS:
(A) The Continuing Parties and the Transferor are parties to a Joint Venture
Agreement dated 13 March 1997, Amendment (No.1) dated 4 July 1997 and
Amendment (No. 2) dated 1 October 1999 to the Joint Venture Agreement
dated 13 March 1997, in relation to the affairs of Chartered Silicon
Partners Pte Ltd (the COMPANY) (such Agreement, as varied, supplemented,
novated or amended from time to time, herein termed the JOINT VENTURE
AGREEMENT).
(B) The Transferor intends to transfer its entire shareholding in the
capital of the Company (SHARES) to the Transferee subject to the
Transferee entering into this Deed.
(C) The Transferee wishes to accept the Shares subject to the condition
referred to in paragraph (B) above.
NOW THIS DEED WITNESSETH AS FOLLOWS:
INTERPRETATION
1. In this Deed, unless the context otherwise requires or unless otherwise
provided in this Deed:
(a) words and expressions defined in the Joint Venture Agreement shall have
the same meanings when used in this Deed; and
(b) reference to CLAUSES are to the clauses of this Deed and references to
PARTIES are to the parties to this Deed.
<PAGE> 3
NOVATION
2.1 With effect from the date hereof, the Continuing Parties hereby release
and discharge the Transferor (save in relation to any antecedent breach)
from all its obligations under the Joint Venture Agreement and (without
prejudice to the rights of the Continuing Parties in respect of any
antecedent breach), the Transferor shall cease to be a party to the
Joint Venture Agreement.
2.2 The Continuing Parties agree that, with effect from the date hereof, the
following shall apply:
(a) the Transferee shall assume all the rights of the Transferor
pursuant to the Joint Venture Agreement;
(b) the Transferee shall be subject to and shall perform all the
obligations of the Transferor pursuant to the Joint Venture
Agreement including without limitation, the obligations from
which the Transferor is released and discharged pursuant to
clause 2.1 as if the Transferee had at all times been a party to
the Joint Venture Agreement in place of the Transferor save
that, the term "Permitted Transferee" in relation to the
Transferee shall mean "Agilent Technologies, Inc. or any
corporation which is at least 99 per cent owned (whether
directly or indirectly) by Agilent Technologies, Inc." and
clause 10(D) of the Joint Venture Agreement shall be deemed to
be amended accordingly;
(c) all references in the Joint Venture Agreement to
"Hewlett-Packard Company" shall be replaced by references to
"Agilent Technologies, Inc.";
(d) the definition of "Hewlett-Packard Company" in clause 1(A) of
the Joint Venture Agreement shall be deleted and the following
shall be added to clause 1(A) as a definition of "Agilent
Technologies, Inc.":
"Agilent Technologies, Inc." means Agilent Technologies, Inc., a
company incorporated in the State of Delaware, United States of
America, with its registered office at 1209 Orange Street,
Wilmington, Delaware 19801, County of New Castle in the State of
Delaware, USA "; and
(e) all references in the Joint Venture Agreement to
"Hewlett-Packard Europe B.V" shall be replaced by references to
"Agilent Technologies Europe B.V." and all references in the
Joint Venture Agreement to "HP" shall be replaced by references
to "Agilent".
CONSENT TO TRANSFER AND CHANGE IN CONTROL OF TRANSFEREE
3.1 Each of the Continuing Parties hereby consents to the transfer of the
Shares by the Transferor to the Transferee notwithstanding the terms of
clauses 10(A)(i), 10(B), 10(C) and 10(F) of the Joint Venture Agreement
and acknowledges that it has no right, interest or claim in or in
relation to the Shares.
3.2 Each of the Continuing Parties hereby consents to the following proposed
change in control of the Transferee:
<PAGE> 4
(i) On or around 9 November 1999, the Transferee will be wholly
owned by Hewlett-Packard World Trade Inc. (HPWT) which will in
turn be wholly owned by Hewlett-Packard Company (HP);
(ii) On or about 11 November 1999, it is proposed that that the
entire issued share capital in the Transferee will be
transferred to Agilent Technologies World Trade, Inc. (ATWT)
which will in turn be wholly owned by HPWT. Pursuant to a
further transfer, the entire issued share capital in ATWT will
be transferred to HP. On or about 15 November 1999, the entire
issued share capital in ATWT will be transferred to Agilent
Technologies, Inc. (ATI) which will in turn be wholly owned by
HP;
(iii) In the month of November 1999, the shares of ATI will be listed
on the New York Stock Exchange with not more than 20 per cent of
its shares offered to the public and the remaining retained by
HP; and
(iv) Thereafter, it is proposed that HP will dispose of its shares to
the public so that by May 2000, HP will cease to hold any shares
in ATI.
3.3 Each of the Continuing Parties hereby waives any and all rights to
object to the proposed change in control of the Transferee as set out in
clause 3.2 above (the PROPOSED CHANGE IN CONTROL) and any rights granted
to it by clause 10(F) of the Joint Venture Agreement in respect of the
Proposed Change in Control and waives the requirement for the Transferee
to notify the Company and each of the Continuing Parties of such change
in control pursuant to clause 10(F) of the Joint Venture Agreement.
TRANSFEROR PROVISIONS
4. With effect from the date hereof, the Transferor, in consideration of
the other parties entering into this Deed, hereby agrees (as a separate,
independent and collateral contract with all the other parties to this
Deed) to be bound by the provisions of clause 18 of the Joint Venture
Agreement, as if it had remained a party to the Joint Venture Agreement.
NOTICES
5. For the purposes of the Joint Venture Agreement, the Transferor's
address for notices shall be as follows:
Address: Agilent Technologies Europe B.V.
Startbaan 16,1187 XR Amstelveen
The Netherlands
Fax No: (31)(20) 547 7755
Addressed for the attention of: The Legal Department
COUNTERPARTS
5. This Deed may be executed in any number of counterparts and by the
parties to it on separate counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
<PAGE> 5
GOVERNING LAW
6. This Deed shall be governed by, and construed in accordance with, the
laws of Singapore.
IN WITNESS this Deed has been duly executed and delivered on the date set out
above.
The Common Seal of )
CHARTERED SEMICONDUCTOR MANUFACTURING LTD )
was affixed hereto in the presence of : )
/s/ Barry Waite
-----------------------------
Director
/s/ Chua Su Li
-----------------------------
Company Secretary
The Common Seal of )
EDB INVESTMENTS PTE LTD )
was affixed hereto in the presence of: )
/s/ Liew Heng San
-----------------------------
Director
/s/ Sara Liew
-----------------------------
Company Secretary
Executed under Seal and delivered as a Deed by )
HEWLETT-PACKARD EUROPE B.V. acting by )
) /s/ C.C.F. van Oers
- -------------------------- ) ---------------------
C.C.F. van Oers
Managing Director
<PAGE> 6
in the presence of: )
Witness:
Signature /s/ J.C.A. van Diemen
-------------------------
Name: J.C.A. van Diemen
-------------------------
Title: Tax Manager
-------------------------
Address: Startbaan 16
-------------------------
1187 XR Amstelveen
-------------------------
The Netherlands
-------------------------
Executed under Seal and delivered as a Deed by )
AGILENT TECHNOLOGIES EUROPE B.V. acting by ) /s/ R.E.J. de Boer
) -----------------------
- -------------------------- ) R.E.J. de Boer
in the presence of: ) Legal Counsel
Witness:
Signature /s/ J.C.A. van Diemen
-------------------------
Name: J.C.A. van Diemen
-------------------------
Title: Tax Manager
-------------------------
Address: Startbaan 16
-------------------------
1187 XR Amstelveen
-------------------------
The Netherlands
-------------------------
<PAGE> 1
EXHIBIT 10.7
EXECUTION COPY
9TH NOVEMBER 1999
(1) CHARTERED SEMICONDUCTOR MANUFACTURING LTD; AND
EDB INVESTMENTS PTE LTD
...(collectively referred to as the "CONTINUING PARTIES")
(2) HEWLETT-PACKARD EUROPE B.V...
........(the "TRANSFEROR")
(3) AGILENT TECHNOLOGIES EUROPE B.V.
........(the "TRANSFEREE")
==============================================================
DEED OF ACCESSION AND RATIFICATION
relating to the Option Agreement dated 4 July 1997 in respect
of shares in the capital of Chartered Silicon Partners Pte Ltd
==============================================================
<PAGE> 2
EXECUTION COPY
THIS DEED is made as of 9th November 1999
BETWEEN:
(1) CHARTERED SEMICONDUCTOR MANUFACTURING LTD of 60 Woodlands Industrial
Park D, Street 2, Singapore 738406 ; and
EDB INVESTMENTS PTE LTD of 250 North Bridge Road #27-04 Raffles City
Tower Singapore 179101;
(together the CONTINUING PARTIES)
(2) HEWLETT-PACKARD EUROPE B.V. of Stratbaan 16,1187 XR, Amstelveen, The
Netherlands (the TRANSFEROR); and
(3) AGILENT TECHNOLOGIES EUROPE B.V. of Stratbaan 16,1187 XR, Amstelveen,
The Netherlands (the TRANSFEREE).
WHEREAS:
(A) The Continuing Parties and the Transferor are parties to a Joint Venture
Agreement dated 13 March 1997, Amendment (No.1) dated 4 July 1997 and
Amendment (No. 2) dated 1 October 1999 to the Joint Venture Agreement
dated 13 March 1997, in relation to the affairs of Chartered Silicon
Partners Pte Ltd (the COMPANY) (such Agreement, as varied, supplemented,
novated or amended from time to time, herein termed the JOINT VENTURE
AGREEMENT).
(B) Pursuant to the Joint Venture Agreement, CSM, EDBI and the Transferor
executed an Option Agreement dated 4 July 1997 (the OPTION AGREEMENT)
whereby EDBI agreed to grant to each of CSM and the Transferor a call
option over ordinary shares held by EDBI in the capital of the Company,
upon the terms and conditions set out in the Option Agreement.
(C) Pursuant to the Deed of Accession and Ratification made between the
parties made as of the date hereof, in relation to the Joint Venture
Agreement dated 4 July 1997 (the DEED OF ACCESSION IN RELATION TO JVA),
the parties wish to enter into this Deed upon the terms and conditions
set out herein.
<PAGE> 3
NOW THIS DEED WITNESSETH AS FOLLOWS:
INTERPRETATION
1. In this Deed, unless the context otherwise requires or unless otherwise
provided in this Deed:
(a) words and expressions defined in the Option Agreement shall have the
same meanings when used in this Deed; and
(b) reference to CLAUSES are to the clauses of this Deed and references to
PARTIES are to the parties to this Deed.
(c) SHARES means all the ordinary shares of S$1.00 each held by the
Transferor in the capital of the Company.
NOVATION
2.1 With effect from the date hereof, each of the Continuing Parties hereby
releases and discharges the Transferor from all its obligations under
the Option Agreement and the Transferor shall cease to be a party to the
Option Agreement.
2.2 The Continuing Parties agree that, with effect from the date hereof, the
following shall apply:
2.3
(a) the Transferee shall assume all the rights of the Transferor
pursuant to the Option Agreement;
(b) the Transferee shall be subject to and shall perform all the
obligations of the Transferor pursuant to the Option Agreement
including without limitation, the obligations from which the
Transferor is released and discharged pursuant to clause 2.1 as
if the Transferee had at all times been a party to the Option
Agreement in place of the Transferor save that, the term
"Permitted Transferee" in relation to the Transferee shall bear
the same meaning as the term `Permitted Transferee' in the Deed
of Accession in relation to the JVA and clause 9(B) of the
Option Agreement shall be deemed to be amended accordingly;
(c) all references in the Option Agreement to "Hewlett-Packard
Company" shall be replaced by references to "Agilent
Technologies, Inc."; and
(d) all references in the Option Agreement to "Hewlett-Packard
Europe B.V" shall be replaced by references to "Agilent
Technologies Europe B.V." and all references in the Option
Agreement to "HP" shall be replaced by references to "Agilent".
<PAGE> 4
CONSENT TO TRANSFER OF SHARES TO TRANSFEREE
3. EDBI hereby consents to the transfer of the Shares by the Transferor to
the Transferee and agrees that the HP Call Option shall remain in full
force and effect, notwithstanding the terms of clause 2(c)(iii)(e) of
the Option Agreement.
NOTICES
4. For the purposes of the Option Agreement, the Transferor's address for
notices shall be as follows:
Address: Agilent Technologies Europe B.V.
Startbaan 16,1187 XR Amstelveen
The Netherlands
Fax No: (31)(20) 547 7755
Addressed for the attention of: The Legal Department
COUNTERPARTS
5. This Deed may be executed in any number of counterparts and by the
parties to it on separate counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
GOVERNING LAW
6. This Deed shall be governed by, and construed in accordance with, the
laws of Singapore.
IN WITNESS this Deed has been duly executed and delivered on the date set out
above.
The Common Seal of )
CHARTERED SEMICONDUCTOR MANUFACTURING LTD )
was affixed hereto in the presence of : )
/s/ Barry Waite
-----------------------------
Director
/s/ Chua Su Li
-----------------------------
Company Secretary
<PAGE> 5
The Common Seal of )
EDB INVESTMENTS PTE LTD )
was affixed hereto in the presence of: )
/s/ Liew Heng San
-----------------------------
Director
/s/ Sara Liew
-----------------------------
Company Secretary
Executed under Seal and delivered as a Deed by )
HEWLETT-PACKARD EUROPE B.V. acting by )
)
)
- ------------------------ ) /s/ C.C.F van Oers
in the presence of: ) ------------------
C.C.F. van Oers
Managing Director
Witness:
Signature /s/ J.C.A. van Diemen
------------------------
Name: J.C.A. van Diemen
------------------------
Title: Tax Manager
------------------------
Address: Startbaan 16
------------------------
1187 XR Amstelveen
------------------------
The Netherlands
------------------------
<PAGE> 6
Executed under Seal and delivered as a Deed by )
AGILENT TECHNOLOGIES EUROPE B.V. acting by )
) /s/ R.E.J. de Boer
- ------------------------ ) --------------------------
in the presence of: ) R.E.J. de Boer
) Legal Counsel
Witness:
Signature /s/ J.C.A. van Diemen
------------------------
Name: J.C.A. van Diemen
------------------------
Title: Tax Manager
------------------------
Address: Startbaan 16
------------------------
1187 XR Amstelveen
------------------------
The Netherlands
------------------------
