<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 March 31, 2000
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
This Quarterly Report contains forward-looking statements, as defined in the
safe harbor provisions of the United States Private Securities Litigation Reform
Act of 1995. These forward-looking statements, including without limitation,
statements relating to our capacity expansion plans and the construction and
equipping of our new fabrication facility as described under item 5 of this
document, reflect our current views with respect to future events and financial
performance, and are subject to certain risks and uncertainties, which could
cause actual results to differ materially from historical results or those
anticipated. For example, changes in the market outlook, customer demands,
availability of materials, equipment, manpower and timely regulatory approvals,
as well as the availability of financing and the terms thereof, could affect our
capacity expansion plans and the construction and equipping of our new
fabrication facility. Although we believe the expectations reflected in such
forward-looking statements are based upon reasonable assumptions, we can give no
assurance that our expectations will be attained. In addition, a description of
certain other risks and uncertainties which could cause actual results to differ
materially from those indicated in the forward looking statements can be found
in the section captioned "Risk Factors" in our Annual Report on Form 20-F filed
with the Securities and Exchange Commission. We undertake no obligation to
publicly update or revise any forward-looking statements, whether as a result of
new information, future events or otherwise.
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PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
CHARTERED SEMICONDUCTOR MANUFACTURING LTD AND SUBSIDIARIES
UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands of US Dollars, except share and per share data)
<TABLE>
<CAPTION>
Three Months Ended March 31,
---------------------------
1999 2000
---------- ----------
<S> <C> <C>
Net revenue $ 130,812 $ 238,409
Cost of revenue 118,127 154,340
---------- ----------
Gross profit 12,685 84,069
---------- ----------
Operating expenses:
Research and development 12,081 17,306
Fab start-up costs -- 11,668
Sales and marketing 10,070 9,319
General and administrative 10,302 15,509
Costs incurred on termination of development program 6,500 --
Stock-based compensation 1,644 1,109
---------- ----------
Total operating expenses 40,597 54,911
---------- ----------
Operating income (loss) (27,912) 29,158
Equity in loss of CSP (2,654) --
Equity in loss of SMP (5,838) (2,252)
Other income 321 2,284
Interest income 663 7,875
Interest expense (4,621) (3,697)
Exchange gain 5,520 1,799
---------- ----------
Income (loss) before income taxes (34,521) 35,167
Income tax expenses (356) (3,770)
---------- ----------
Income (loss) before minority interest (34,877) 31,397
Minority interest in loss of CSP -- 6,420
---------- ----------
Net income (loss) $ (34,877) $ 37,817
========== ==========
Net income (loss) per share and ADS
Basic net income (loss) per share $ (0.04) $ 0.03
Diluted net income (loss) per share (0.04) 0.03
Basic net income (loss) per ADS $ (0.35) $ 0.30
Diluted net income (loss) per ADS (0.35) 0.29
Number of shares (in millions) used in computing:
- basic net income (loss) per share 985.7 1,279.9
- diluted net income (loss) per share 985.7 1,307.8
Number of ADS (in millions) used in computing:
- basic net income (loss) per ADS 98.6 128.0
- diluted net income (loss) per ADS 98.6 130.8
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
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<PAGE> 4
CHARTERED SEMICONDUCTOR MANUFACTURING LTD AND SUBSIDIARIES
UNAUDITED CONSOLIDATED BALANCE SHEETS
(In thousands of US Dollars)
<TABLE>
<CAPTION>
As of
--------------------------------
December 31, March 31,
1999 2000
------------- -------------
<S> <C> <C>
ASSETS
Cash and cash equivalents $ 544,996 $ 509,396
Accounts receivable 141,226 130,942
Inventories 33,619 34,646
Other current assets 9,946 15,493
------------- -------------
Total current assets 729,787 690,477
Property, plant and equipment, net 1,282,106 1,414,213
Investment in SMP 47,036 53,569
Other non-current assets 73,979 59,469
------------- -------------
Total assets $ 2,132,908 $ 2,217,728
============= =============
LIABILITIES AND SHAREHOLDERS' EQUITY
Accounts payable $ 152,401 $ 148,776
Current installments of obligations under capital leases 5,767 5,973
Current installments of long-term debt 119,991 118,083
Accrued operating expenses 127,147 158,654
Other current liabilities 29,919 36,333
------------- -------------
Total current liabilities 435,225 467,819
Obligations under capital leases, excluding current
installments 7,822 7,793
Long-term debt, excluding current installments 423,668 431,980
Other liabilities 67,279 54,135
------------- -------------
Total liabilities 933,994 961,727
Minority interest 57,164 74,170
Shareholders' equity 1,141,750 1,181,831
------------- -------------
Total liabilities and shareholders' equity $ 2,132,908 $ 2,217,728
============= =============
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
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CHARTERED SEMICONDUCTOR MANUFACTURING LTD AND SUBSIDIARIES
UNAUDITED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands of US Dollars)
<TABLE>
<CAPTION>
For The Three Months Ended
--------------------------
March 31, March 31,
1999 2000
--------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss) $ (34,877) $ 37,817
Adjustments to reconcile net income to net cash
provided by operating activities:
Equity in loss of CSP 2,654 --
Equity in loss of SMP 5,838 2,252
Depreciation and amortization 64,810 71,291
Foreign exchange gain on financing activities (2,134) (1,527)
Minority interest in loss of CSP -- (6,420)
(Gain) loss on disposal of property, plant and equipment 2,896 (377)
Stock-based compensation 1,644 1,109
Other 1,674 (168)
Changes in operating working capital:
Accounts receivable (2,591) 7,639
Amount due from ST, ST affiliates, CSP and SMP (7,052) (1,528)
Inventories 899 (1,027)
Prepaid expenses (1,143) (1,550)
Trade accounts payable (3,126) (1,822)
Accrued operating expenses (22,662) 34,224
Other current liabilities (2,206) 4,697
--------- ---------
Net cash provided by operating activities: 4,624 144,610
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES
Proceed from sale of property, plant and equipment 468 2,778
Purchase of property, plant and equipment (20,882) (203,715)
Technology license fees paid (2,000) --
Investment in SMP (8,511) (8,784)
--------- ---------
Net cash used in investing activities: (30,925) (209,721)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES
Bank overdrafts (3,082) --
Customer deposits, net (23,490) (12,776)
Loans from ST and ST affiliates
Borrowings 1,562 --
Repayments (1,562) --
Long term debt
Borrowings -- 59,880
Repayments (4,665) (42,399)
Issuance of shares by the Company 39 1,494
Issuance of shares by CSP to minority shareholders -- 23,426
--------- ---------
Net cash provided by (used in) financing activities: (31,198) 29,625
--------- ---------
Net (decrease) increase in cash and cash equivalents (57,499)
(35,486)
Effect of exchange rate changes on cash and cash equivalents (31) (114)
Cash at the beginning of the period 99,619 544,996
--------- ---------
Cash at the end of the period $ 42,089 $ 509,396
========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
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CHARTERED SEMICONDUCTOR MANUFACTURING LTD
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 31, 2000
1 Business and Organization
Chartered Semiconductor Manufacturing Ltd currently owns, or has an
interest in, five fabrication facilities, all of which are located in Singapore.
The Company is currently in the process of constructing a sixth fabrication
facility 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 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 Agilent Technologies B.V. Fab 7, which is also
wholly-owned by the Company, is in the design and initial construction phase.
We were incorporated in Singapore in 1987. As of March 31, 2000, we were
70.1% owned by Singapore Technologies Pte Ltd, or ST, and its affiliates. ST is
one of Singapore's largest industrial conglomerates and is indirectly
wholly-owned by the Government of Singapore. After giving effect to a global
offering by the Company, an affiliate of ST and certain other shareholders on
May 9, 2000, ST and its affiliates hold approximately a 62.3% interest in our
Company.
2 Basis of Presentation
The results of operations reflect the interim adjustments, all of which
are of a normal recurring nature and which, in the opinion of management, are
necessary for a fair presentation of the results for such interim period. The
results reported in these condensed consolidated financial statements should not
be regarded as necessarily indicative of results that may be expected for the
entire year. These unaudited condensed consolidated financial statements should
be read in conjunction with the audited consolidated financial statements
included in the Company's Annual Report on Form 20-F for the year ended December
31, 1999.
3. Principles of Consolidation
The accompanying condensed quarterly financial statements reflect the
consolidated financial statements of Chartered Semiconductor Manufacturing Ltd
and its majority owned and controlled affiliates. All significant transactions
among the parent and consolidated affiliates have been eliminated.
4. Investment in CSP and SMP
The equity accounting method is applied for the investment in SMP, as
well as for the investment in CSP for the period prior to October 1, 1999.
5. Contingencies
As is typical in the semiconductor industry, the Company has from time
to time received communications from third parties asserting patents that cover
certain of the Company's technologies and alleging infringements of certain
intellectual property rights of others. The Company has acquired certain
technology licenses for use in its business and may seek to obtain
6
<PAGE> 7
other licenses in the future. There can be no assurance that the Company will be
able to obtain such future licenses on commercially reasonable terms, or at all.
The Company has accrued a liability for, and charged to its results of
operations, the estimated costs of obtaining such licenses for third party
technology. The amount accrued was $13.5 million as of March 31, 2000. No
assurance can be given that such provisions are adequate.
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 March 31,
----------------------------
1999 2000
---------- ----------
(as a percentage of net revenue)
<S> <C> <C>
Net revenue 100.0% 100.0%
Cost of revenue 90.3 64.7
---------- ----------
Gross profit 9.7 35.3
---------- ----------
Operating expenses:
Research and development 9.2 7.3
Fab start-up costs -- 4.9
Sales and marketing 7.7 3.9
General and administrative 7.9 6.5
Costs incurred on termination of development program 5.0 --
Stock-based compensation 1.3 0.5
---------- ----------
Total operating expenses 31.1 23.1
---------- ----------
Operating income (loss) (21.4) 12.2
Equity in loss of CSP (2.0) --
Equity in loss of SMP (4.5) (0.9)
Other income 0.2 1.0
Interest income 0.5 3.3
Interest expense (3.5) (1.6)
Exchange gain 4.2 0.8
---------- ----------
Income (loss) before income taxes (26.5) 14.8
Income tax expenses (0.3) (1.6)
---------- ----------
Income (loss) before minority interest (26.8) 13.2
Minority interest in loss of CSP -- 2.7
---------- ----------
Net income (loss) (26.8) 15.9
========== ==========
</TABLE>
Three months ended March 31, 1999 and March 31, 2000
Net revenue. Net revenue increased 82.3% from $130.8 million in the
three months ended March 31, 1999 to $238.4 million in the three months ended
March 31, 2000. The higher revenue was due to the addition of new customers and
higher demand resulting from what the Company believes is the increased trend
toward outsourcing by Integrated Device Manufacturers, or IDMs, and System OEMs.
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<PAGE> 8
Increasingly Europe is becoming a significant part of our business while
the U.S. remains as our dominant region. Net revenue increased 1,115.8% from
$4.7 million for the three months ended March 31, 1999 to $56.7 million for the
three months ended March 31, 2000 for Europe and 39.2% from $100.5 million for
the three months ended March 31, 1999 to $139.9 million for the three months
ended March 31, 2000 for the U.S.
The number of eight-inch equivalent wafers shipped increased from
153,800 in the three months ended March 31, 1999 to 210,100 in the three months
ended March 31, 2000, an increase of 56,300 or 36.7%. Average selling prices
also contributed to the improvement in net revenue. Average selling prices
increased from $916 per wafer (adjusted to exclude the terminated print-head
business) in the three months ended March 31, 1999 to $1,134 per wafer in the
three months ended March 31, 2000. The improvement in the average selling price
was mainly due to the shipment of wafers with a higher mix of advanced
technologies.
Cost of revenue and gross profit. Cost of revenue increased 30.7% from
$118.1 million in the three months ended March 31, 1999 to $154.3 million in the
three months ended March 31, 2000, principally due to the increase in production
volumes. The increase in the number of wafers produced resulted in a 4.4%
decrease in average cost per wafer from $768 in the three months ended March 31,
1999 to $734 in the three months ended March 31, 2000. The higher average
selling price and lower cost per wafer resulted in an improvement in gross
margin from 9.7% in the three months ended March 31, 1999 to 35.3% in the three
months ended March 31, 2000.
Research and development expenses. Research and development expenses
increased by 43.2% from $12.1 million for the three months ended March 31, 1999
to $17.3 million for the three months ended March 31, 2000 due to expenses for
the development of 0.18um process technology as well as other advanced
processes. As a percentage of net revenue, research and development expenses
reduced from 9.2% for the three months ended March 31, 1999 to 7.3% for the
three months ended March 31, 2000.
Fab start-up costs. As a result of the amendment to the strategic
alliance agreement with Agilent Technologies Europe B.V. and EDB Investments Pte
Ltd, the Company has treated CSP as a consolidated subsidiary from October 1,
1999 forward. The fab start-up costs for the three months ended March 31, 2000
were related to the start-up costs at CSP.
General and administrative expenses. General and administrative expenses
increased by 50.5% from $10.3 million for the three months ended March 31, 1999
to $15.5 million for the three months ended March 31, 2000 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 7.9% for the three
months ended March 31, 1999 to 6.5% in the three months ended March 31, 2000.
Equity in loss of CSP. Prior to October 1, 1999, CSP was accounted for
using the equity method. Effective October 1, 1999, as a result of an amendment
to the CSP strategic alliance agreement, we have treated CSP as a consolidated
subsidiary. Our share of the losses in CSP was $2.7 million for the three months
ended March 31, 1999 (the period of time during which CSP was accounted for
using the equity method).
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Equity in loss of SMP. Our share of the loss in SMP was $5.8 million in
the three months ended March 31, 1999 and $2.3 million in the three months ended
March 31, 2000. The reduction in loss was the result of production ramp up in
SMP.
Other income. Other income increased from $0.3 million in the three
months ended March 31, 1999 to $2.3 million in the three months ended March 31,
2000. The increase was mainly due to compensation from one of our customers for
a short fall in capacity utilization.
Interest income. Interest income increased from $0.7 million in the
three months ended March 31, 1999 to $7.9 million in the three months ended
March 31, 2000. The increase was due to interest earned from cash proceeds from
our initial public offering which were placed in fixed deposits.
Interest expense. Interest expense decreased from $4.6 million in the
three months ended March 31, 1999 to $3.7 million in the three months ended
March 31, 2000 due to higher interest capitalization as a result of capacity
expansion.
Exchange gain. We recognized an exchange gain of $5.5 million in the
three months ended March 31, 1999 and $1.8 million in the three months ended
March 31, 2000 due primarily to currency fluctuations between the U.S. dollar
and the Singapore dollar.
Income tax expense. Our income tax expense for the three months ended
March 31, 1999 was $0.4 million compared to $3.8 million for the three months
ended March 31, 2000. The higher income tax expense was primarily the result of
taxes payable on the increase in interest income.
Minority interest in loss of CSP. The minority interest in loss of CSP
of $6.4 million for the three months ended March 31, 2000 results from the
consolidation of CSP as a subsidiary from October 1, 1999.
LIQUIDITY AND CAPITAL RESOURCES
As of March 31, 2000, our principal sources of liquidity included $509.4
million in cash and cash equivalents and $293.6 million of unutilized banking
and credit facilities consisting of short-term advances and bank guarantees.
Net cash provided by operating activities totaled $144.6 million for the
three months ended March 31, 2000 and $4.6 million for the three months ended
March 31, 1999. The $144.6 million of net cash generated from operating
activities for the three months ended March 31, 2000 was mainly attributable to
improved net income and an increase in accrued operating expenses.
Net cash used in investing activities totaled $209.7 million for the
three months ended March 31, 2000 and $30.9 million for the three months ended
March 31, 1999. Our investing activities have consisted primarily of capital
expenditures totaling $203.7 million for the three months ended March 31, 2000
and $20.9 million for the three months ended March 31, 1999. Capital
expenditures have been principally comprised of the purchase of semiconductor
equipment for the equipping of our fabs.
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Net cash provided by financing activities totaled $29.6 million for the
three months ended March 31, 2000. Cash generated from financing activities for
the three months ended March 31, 2000 was principally from long term borrowings
to finance our expansion, partly offset by the return of customer deposits and
repayment of loans. Net cash used in financing activities totaled $31.2 million
for the three months ended March 31, 1999. The cash outflow from financing
activities for the three months ended March 31, 1999 was principally due to the
return of customer deposits and repayment of loans.
INVESTMENT IN SMP
The investment in SMP as of December 31, 1999 and March 31, 2000
consisted of the following:
<TABLE>
<CAPTION>
As of
---------------------------------
December 31, March 31,
1999 2000
------------- -------------
(in thousands of US Dollars)
<S> <C> <C>
Cost $ 85,175 $ 93,959
Share of retained post-formation loss (38,139) (40,390)
------------- -------------
$ 47,036 $ 53,569
============= =============
</TABLE>
The Company accounts for its 49% investment in SMP using the equity
method. Under the terms of the strategic alliance agreement, the Company is
committed to making a total equity investment in SMP of up to $122.2 million, of
which $94.0 million has been invested.
Under the strategic alliance agreement with the majority shareholder of
SMP, in arriving at the share of net income attributable to the Company, the
Company is entitled to the margins from sales to customers directed to SMP by
the Company, after deducting a 49% share of the overhead costs of SMP.
Accordingly, SMP's net results are not expected to be shared in the same ratio
as the equity holding. The Company accounts for its due share of SMP's net
results in accordance with the terms of the strategic alliance agreement.
SMP commenced recording of revenue in the quarter ended June 30, 1999.
Shown below is aggregated summarized financial information for SMP.
<TABLE>
<CAPTION>
As of
---------------------------------
December 31, March 31,
1999 2000
------------- -------------
(in thousands of US Dollars)
<S> <C> <C>
Current assets $ 40,495 $ 56,567
Property, plant and equipment 300,556 389,577
Other current liabilities 52,821 71,582
Long term debt 187,000 260,000
Shareholders' equity 101,230 114,562
</TABLE>
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<TABLE>
<CAPTION>
As of
---------------------------------
December 31, March 31,
1999 2000
------------- -------------
(in thousands of US Dollars)
<S> <C> <C>
Net revenue -- $ 34,501
Gross loss -- 1,254
Operating loss $ 11,800 1,809
Net loss 11,914 4,597
</TABLE>
SMP has a term loan facility of $445 million with several banks and
financial institutions for capital expenditures, equipment and operating costs.
As of March 31, 2000, $260 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 quarterly and principal will be amortized in seven equal
semi-annual installments commencing March 17, 2002 (for Tranche A of $300
million) and September 3, 2002 (for Tranche B of $145 million). Borrowings under
this facility are secured.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
For a 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
Annual Report on Form 20-F dated March 20, 2000, which is incorporated herein by
reference.
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
The Company is not involved in any legal proceedings that we believe
would be harmful to the Company.
Item 2. Changes in Securities and Use of Proceeds
As of March 31, 2000, of the net proceeds from our initial public
offering, approximately $24.4 million has been used for an equity injection in
CSP, $8.8 million has been used for an equity injection in SMP and $48.0 million
has been used for capital expenditures. The remaining proceeds are invested in
various time deposits with institutions. None of the net proceeds from our
initial public offering 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.
Item 3. Defaults Upon Senior Securities.
None.
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Item 4. Submission of Matters to a Vote of Security Holders.
None.
Item 5. Other Information
In January 2000, we announced our intention to double manufacturing
capacity from approximately 700,000 wafers a year to 1.4 million wafers a year
by the end of 2001. The capacity expansion plans are being implemented in stages
that will allow us to add capacity on a continuing basis. A copy of the news
release announcing the capacity expansion plans was filed with the SEC on Form
6-K dated January 24, 2000.
In February 2000, we commenced construction of Fab 7 which is located at
our main Singapore campus located at Woodlands Industrial Park. This new fab
will be equipped to support advanced manufacturing process technologies starting
at 0.15um. The cost of construction and equipment in the new facility is
currently estimated at approximately $2.1 billion. First wafer output at the new
facility is expected to occur in mid-2001. A copy of the news release announcing
the construction of Fab 7 was filed with the SEC on Form 6-K dated February 23,
2000.
On May 9, 2000, our Company, an affiliate of ST and certain other
shareholders completed a global offering of 135,100,000 ordinary shares
(directly or in the form of American Depositary Shares, or ADSs) at an offering
price of $65.00 per ADS. Of the 135,100,000 ordinary shares (directly or in the
form of ADSs) sold in the global offering, 78,000,000 ordinary shares were newly
issued shares sold by the Company and 57,100,000 ordinary shares (directly or in
the form of ADSs) were sold by the selling shareholders. In connection with the
global offering, we and an affiliate of ST have also granted the underwriters an
option to purchase an additional 11,700,000 and 8,565,000 ordinary shares
(directly or in the form of ADSs), respectively, to cover overallotments, if
any. A registration statement on Form F-1 under the Securities Act of 1933 (File
No. 333-34194) and a registration statement on Form F-6 under the Securities Act
of 1933 (File No. 333-34682) were filed in connection with the global offering
and were declared effective on May 3, 2000. We received approximately $492.5
million from the ordinary shares (including ordinary shares represented by ADSs)
we sold in the global offering. We did not receive any of the proceeds from the
sale of ordinary shares (including ordinary shares represented by ADSs) by the
selling shareholders. For further information with respect to our Company and
the ordinary shares and ADSs offered in the global offering, please refer to the
registration statements.
Item 6. Exhibits and Reports on Form 6-K
(a) Exhibits
1.1 U.S. Underwriting Agreement dated May 4, 2000 by and among the
Company, Singapore Technologies Semiconductors Pte Ltd and the
underwriters listed on the signature pages thereto.
1.2 International Underwriting Agreement dated May 4, 2000 by and
among the Company, the selling shareholders and the underwriters
listed on the signature pages thereto.
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*10.1 First Ancillary Agreement to the Technology Transfer and License
Agreement dated January 24, 2000 by and among the Company,
Chartered Silicon Partners Pte Ltd and Motorola, Inc.
**10.2 Turnkey Subcontract Agreement for Sort, Assembly and/or Final
Test Services dated March 21, 2000 by and between the Company
and ST Assembly Test Services Ltd
(b) Reports on Form 6-K
During the quarter ended March 31, 2000, the Company filed the following
current reports on Form 6-K.:
1. On January 24, 2000, we filed a Form 6-K reporting the
announcement of our results for the quarter and year ended
December 31, 1999 and our capacity expansion plans.
2. On February 23, 2000, we filed a Form 6-K reporting the
announcement of the ground breaking for our new fabrication
facility to be located in Singapore.
- --------
* Filed as an exhibit to the Company's Annual Report on Form 20-F, as filed with
the Securities and Exchange Commission on March 20, 2000, which exhibit is
incorporated herein by reference.
** Filed as an exhibit to the Company's Registration Statement on Form F-1
(Registration No. 333-34194), which exhibit is incorporated herein by reference.
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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: May 15, 2000
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: Senior Vice President and Chief
Financial Officer
14
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Exhibit Index
1.1 U.S. Underwriting Agreement dated May 4, 2000 by and among the
Company, Singapore Technologies Semiconductors Pte Ltd and the
underwriters listed on the signature pages thereto.
1.2 International Underwriting Agreement dated May 4, 2000 by and
among the Company, the selling shareholders and the underwriters
listed on the signature pages thereto.
*10.1 First Ancillary Agreement to the Technology Transfer and License
Agreement dated January 24, 2000 by and among the Company,
Chartered Silicon Partners Pte Ltd and Motorola, Inc.
**10.2 Turnkey Subcontract Agreement for Sort, Assembly and/or Final
Test Services dated March 21, 2000 by and between the Company
and ST Assembly Test Services Ltd
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* Filed as an exhibit to the Company's Annual Report on Form 20-F, as filed with
the Securities and Exchange Commission on March 20, 2000, which exhibit is
incorporated herein by reference.
** Filed as an exhibit to the Company's Registration Statement on Form F-1
(Registration No. 333-34194), which exhibit is incorporated herein by reference.
15
<PAGE> 1
EXHIBIT 1.1
Execution Copy
Chartered Semiconductor Manufacturing Ltd
81,060,000 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
May 4, 2000
Salomon Smith Barney Inc.
Credit Suisse First Boston Corporation
Chase Securities Inc.
SG Cowen Securities Corporation
Wit SoundView Corporation
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, 46,800,000 ordinary
shares (the "Ordinary Shares"), S$0.26 par value per share, of the Company
directly or in the form of American Depositary Shares (the "ADSs") and each of
the Selling Shareholders named in Schedule II hereto proposes to sell to the
several U.S. Underwriters the number of Ordinary Shares directly or in the form
of ADSs set forth opposite its name on Schedule II aggregating 34,260,000
Ordinary Shares (said Ordinary Shares to be issued and sold by the Company and
the Selling Shareholders being hereinafter called the "U.S. Underwritten
Shares"). The Company and Singapore Technologies Semiconductors Pte Ltd ("STS")
also propose to grant to the U.S. Underwriters an option to purchase up to
7,020,000 and 5,139,000, respectively, additional Ordinary Shares directly or in
the form of ADSs to cover overallotments (the "U.S. Option Shares" and together
with the U.S. Underwritten Shares, the "U.S. Shares" or the "U.S. Securities").
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* Plus an option to purchase from Chartered Semiconductor Manufacturing
Ltd and Singapore Technologies Semiconductors Pte Ltd up to 7,020,000
and 5,139,000, respectively, additional Ordinary Shares directly or in
the form of American Depositary Shares to cover overallotments.
<PAGE> 2
It is understood that the Company and certain selling shareholders are
concurrently entering into the International Underwriting Agreement, dated May
4, 2000 (together with this U.S. Underwriting Agreement, the "Underwriting
Agreements"), providing for the sale by the Company and such selling
shareholders of an aggregate of 54,040,000 Ordinary Shares directly or in the
form of ADSs (said Ordinary Shares to be sold by the Company and such selling
shareholders 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 and STS up to 4,680,000 and 3,426,000, respectively, additional Ordinary
Shares directly or in the form of ADSs to cover overallotments (the
"International Option Shares" and together with the International Underwritten
Shares, the "International Shares" or the "International Securities", and the
International Securities together with the U.S. Securities, the "Securities").
In connection with the Global Offering (as defined below), the Company
has made a listing application to the Singapore Exchange Securities Trading
Limited (the "SGX-ST") and has lodged a Statement of Material Facts (the
"Statement") with the Singapore Registrar of Companies and Businesses ("RCB") to
invoke the exemption from the prospectus registration requirements under Section
106F of the Companies Act, Chapter 50 of Singapore.
You have also advised the Company and the Selling Shareholders that the
Underwriters may elect to cause the Company to deposit on their behalf all or
any portion of the Ordinary Shares to be purchased by them under the
Underwriting Agreements pursuant to the Deposit Agreement, dated as of November
4, 1999 (the "Deposit Agreement"), entered into among the Company, Citibank,
N.A., as depositary (the "Depositary") and all holders from time to time of the
ADSs. Upon any such deposit of Ordinary Shares, the Depositary will issue ADSs
representing the Ordinary Shares so deposited. The ADSs will be evidenced by
American Depositary Receipts (the "ADRs"). Each ADS will represent ten Ordinary
Shares and each ADR may represent any number of ADSs.
Prior to the Closing Date (as defined below), the Ordinary Shares to be
issued and sold by the Company will be delivered into escrow to be held by
Citibank Nominees Singapore Pte Ltd, as escrow agent (the "Escrow Agent"),
pursuant to an escrow agreement (the "Issuer Escrow Agreement") to be entered
into between the Company, the Escrow Agent and the Underwriters. Prior to the
Closing Date, the Ordinary Shares to be sold by each Selling Shareholder will be
delivered into escrow to be held by the Escrow Agent pursuant to an escrow
agreement (each, a "Selling Shareholder Escrow Agreement") to be entered into
between a Selling Shareholder, the custodian for such Selling Shareholder, the
Escrow Agent and the Underwriters.
Unless the context otherwise requires, the terms "Underwritten
Securities", "Option Securities", "U.S. Underwritten Securities", "U.S. Option
Securities", "U.S. Securities", "International Underwritten Securities",
"International Option Securities", "International Securities" and "Securities"
shall be deemed to refer, respectively, to Underwritten Shares, Option Shares,
U.S. Underwritten Shares, U.S. Option Shares, U.S. Shares, International
Underwritten Shares, International Option Shares, International Shares and
Shares, as well as, in each case, to any ADSs representing such securities.
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<PAGE> 3
It is further understood and agreed that the U.S. Underwriters and the
International Underwriters have entered into an Agreement Among U.S.
Underwriters and International Underwriters, dated the date hereof (the
"Agreement Among U.S. Underwriters and International Underwriters"), pursuant to
which, among other things, the International Underwriters may purchase from the
U.S. Underwriters a portion of the U.S. Securities to be sold pursuant to this
U.S. Underwriting Agreement and the U.S. Underwriters may purchase from the
International Underwriters a portion of the International Securities to be sold
pursuant to the International 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"; and the offering of the International
Shares, directly or in the form of ADSs, is referred to herein as the
"International Offering". The U.S. Offering and International Offering are
referred to collectively as the "Global Offering".
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. In addition, to the extent that there is not more than
one Selling Shareholder named in Schedule II, the term Selling Shareholders
shall mean the singular. The use of the neuter in this 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. (I) The Company and, except as
to paragraphs (i), (n) (other than clause (i) thereof), (q), (r), (s), (t)
(other than clause (i) thereof), (v), (w), (x), (y), (z), (aa), (bb), (cc),
(dd), (ff), (gg) and (hh) below, STS jointly and severally represent and warrant
to, and agree with, each U.S. Underwriter as set forth below in this Section 1.
(a) The Company has filed with the Commission a registration
statement (file number 333-34194) on Form F-1, including the related
U.S. Preliminary Prospectus, for the registration under the Act of the
offering and sale of the U.S. Securities. The Company may have filed one
or more amendments thereto, including the related U.S. Preliminary
Prospectus, which have previously been furnished to you. The Company
will next file with the Commission either (1) prior to the Effective
Date of the Registration Statement, a further amendment to the
Registration Statement (including the form of U.S. Prospectus) or (2)
after the Effective Date of the Registration Statement, the U.S.
Prospectus in accordance with Rules 430A and 424(b). In the case of
clause (2), the Company has included in the Registration Statement, as
amended at the Effective Date, 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
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<PAGE> 4
thereof directly or in the form of ADSs. As filed, such amendment and
form of final U.S. Prospectus, or such U.S. Prospectus, as the case may
be, shall contain all Rule 430A Information, together with all other
such required information, with respect to the underlying Ordinary
Shares and the offering thereof directly or in the form of ADSs, and,
except to the extent the U.S. Representatives shall agree to a
modification, shall be in all substantive respects in the form furnished
to you prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest U.S.
Preliminary Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
It is understood that two forms of offering documents are to be
used in connection with the Global Offering and sale of the Securities:
one form of prospectus relating to the U.S. Securities, which are to be
offered and sold to United States and Canadian Persons, and one form of
offering memorandum relating to the International Securities, which are
to be offered and sold to persons other than United States and Canadian
Persons. The U.S. Prospectus and the International Offering Memorandum
are identical except for the outside front cover page and the outside
back cover page.
(b) On the Effective Date, the Registration Statement did or
will, and when the U.S. Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date and on any date on
which Option Securities are purchased, if such date is not the Closing
Date (a "settlement date"), each U.S. Prospectus (and any supplements
thereto) will comply in all material respects with the applicable
requirements of the Act and the rules thereunder; on the Effective Date
and at the Execution Time, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and, on the Effective Date,
each Prospectus, if not filed pursuant to Rule 424(b), did not and will
not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date and any settlement date, each Prospectus (together with any
supplement thereto) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company and STS
make no representations or warranties as to the information contained in
or omitted from the Registration Statement, or the Prospectuses (or any
supplement thereto), in reliance upon and in conformity with information
furnished herein or in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in
the Registration Statement or the Prospectuses (or any supplement
thereto). It is understood that the information that has been furnished
in writing by or on behalf of the several Underwriters for inclusion in
the Registration Statement, Preliminary Prospectuses or the Prospectuses
is limited to (A) the names of the Underwriters and their respective
participation in the sale of the Securities as set forth in the two
charts under the heading "Underwriting" in the Preliminary Prospectuses
or Prospectuses, (B) the statements set forth in the last paragraph on
the front cover page of the Preliminary Prospectuses or Prospectuses
regarding delivery of the Securities (and the ADSs representing such
Securities) and (C) the statements set forth in the seventh, ninth,
thirteenth and fifteenth paragraphs under the heading "Underwriting" in
the Preliminary Prospectuses or Prospectuses.
(c) The Company has filed with the Commission registration
statements (file numbers 333-88623 and 333-34692) on Form F-6
(collectively, the "ADR Registration
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<PAGE> 5
Statement") for the registration under the Act of the offering and sale
of the ADSs. The Company may have filed one or more amendments thereto,
each of which has previously been furnished to you. Such ADR
Registration Statement at the time of its effectiveness did or will
comply and on the Closing Date, will comply, in all material respects
with the applicable requirements of the Act and the rules thereunder and
at the time of its Effective Date and at the Execution Time, did not and
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(d) Each of the Company and the Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of
the jurisdiction in which it is incorporated with full corporate power
to own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectuses, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified or be in good
standing would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and the Subsidiaries,
taken as a whole.
(e) All the outstanding share capital of each Subsidiary has
been duly and validly authorized and issued and is fully paid and
non-assessable and, except for such shares of Chartered Silicon Partners
Pte Ltd ("CSP") as are owned by Agilent Technologies Europe BV or EDB
Investments Pte Ltd which shares do not exceed 49% of the outstanding
voting shares of CSP, all the outstanding shares of capital stock of the
Subsidiaries are owned by the Company directly free and clear of any
perfected security interests, liens or encumbrances.
(f) The Company's authorized, issued and outstanding equity
capitalization is as set forth in the Prospectuses. The outstanding
Ordinary Shares have been duly and validly authorized and issued and are
fully paid and non-assessable. The Ordinary Shares being sold under the
Underwriting Agreements 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 and the Issuer Escrow
Agreement, to the U.S. Underwriters in accordance with this U.S.
Underwriting Agreement and the Issuer Escrow Agreement and to the
International Underwriters in accordance with the International
Underwriting Agreement and the Issuer Escrow Agreement, will be validly
issued, fully paid and non-assessable. The certificates for the Shares
and the ADRs that are in certificated form are in valid form. The
holders of outstanding shares of capital stock of the Company are not
entitled to any preemptive or other rights to subscribe for the
Securities except for such rights that have been effectively waived.
Except as disclosed in the Prospectuses, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights
to convert any obligations into or exchange any securities for, shares
of capital stock of or ownership interests in the Company are
outstanding. The Securities being sold by the Company are freely
transferable by the Company to or for the account of the several
Underwriters, their designees and the initial purchasers thereof. Except
as set forth in the Prospectuses, there
5
<PAGE> 6
are no restrictions on subsequent transfers of the Securities under the
laws of Singapore and of the United States.
(g) The capital stock of the Company conforms in all
material respects to the description thereof contained in the
Prospectuses. The Articles of Association described in the Prospectuses
under the heading "Description of Ordinary Shares" are in full force and
effect.
(h) Each of this U.S. Underwriting Agreement, the
International Underwriting Agreement and the Deposit Agreement has been
duly authorized, executed and delivered by the Company. The Issuer
Escrow Agreement has been duly authorized by the Company and, on or
prior to the Closing Date, will be duly executed and delivered by the
Company.
(i) There is no franchise, contract or other document of a
character required to be described in the Registration Statement, ADR
Registration Statement or Prospectuses, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
description of each such contract, franchise or document in the
Prospectuses is a fair description thereof in all material respects; and
each such franchise, contract or other document to which the Company is
a party, assuming due authorization, execution and delivery thereof by
all parties thereto, is enforceable against the Company in accordance
with its terms and is in full force and effect, and to the Company's
knowledge, is a legal, valid and binding obligation of the other parties
thereto. The statements in the Prospectuses under the heading
"Taxation", fairly summarize the matters therein described.
(j) Upon issuance by the Depositary of the ADRs evidencing
the ADSs against deposit in accordance with the provisions of the
Deposit Agreement of the underlying Ordinary Shares being sold by the
Company under the Underwriting Agreements, such ADSs will be duly and
validly issued and persons in whose names such ADSs are duly registered
will be entitled to the rights specified in the ADSs and in the Deposit
Agreement. Assuming that an Underwriter acquires its interest in such
ADSs without notice of an adverse claim (within the meaning of Section
8-105 of the UCC), such Underwriter that has purchased such ADSs
delivered to The Depository Trust Company by making payment therefor as
provided herein, and that has had such ADSs credited to the securities
account or accounts of such Underwriter maintained with The Depository
Trust Company or other securities intermediary will have acquired a
security entitlement (within the meaning of Section 8-102(a)(17) of the
New York Uniform Commercial Code (the "UCC")) to such ADSs purchased by
such Underwriter, and no action based on any such adverse claim (within
the meaning of Section 8-102(a)(1) of the UCC) may be asserted against
such Underwriter with respect to such ADSs.
(k) No stamp or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable by
or on behalf of the Underwriters to the Singapore government or any
political subdivision or taxing authority thereof in connection with (A)
the execution and delivery of the Underwriting Agreements, (B) the
issuance of the Ordinary Shares or the ADSs being sold by the Company
under the Underwriting Agreements in the manner contemplated by the
Underwriting Agreements, (C) the deposit with the Depositary of the
underlying Ordinary Shares being sold by the Company under the
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<PAGE> 7
Underwriting Agreements against issuance of ADRs evidencing the ADSs,
(D) the sale and delivery of the Ordinary Shares and the ADSs by the
Company to the Underwriters in accordance with the Underwriting
Agreements, or (E) except as disclosed in the Prospectuses under the
heading "Taxation--Singapore Taxation", the resale and delivery of such
Ordinary Shares and ADSs by the Underwriters in the manner contemplated
in the Prospectuses.
(l) Except as described in the Prospectuses, all dividends
and other distributions declared and payable on the Ordinary Shares may
under current Singapore law and regulations be paid to the Depositary
and to the holders of Securities, as the case may be, in Singapore
dollars and may be converted into foreign currency that may be
transferred out of Singapore in accordance with the Deposit Agreement.
(m) No consent, approval (including exchange control
approval), authorization, filing with or order of any court or
governmental or regulatory agency or body is required under Singapore or
U.S. federal law or the laws of any state or political subdivision
thereof in connection with the consummation by the Company of the
transactions contemplated in this U.S. Underwriting Agreement, the
International Underwriting Agreement, the Deposit Agreement and the
Issuer Escrow Agreement, except (A) such as have been obtained under the
Act, the Exchange Act, the Companies Act, Chapter 50 of Singapore, (B)
such as may be required under the blue sky or similar laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated in the
Underwriting Agreements and the Prospectuses and (C) such as may be
required pursuant to the National Association of Securities Dealers,
Inc. rules, The Nasdaq Stock Market, Inc. rules, the letter from the
SGX-ST dated September 15, 1999 granting approval in principle for the
listing and quotation of the entire issued share capital of the Company
on the Main Board of the SGX-ST, or the letter from the SGX-ST dated
March 29, 2000 regarding the listing of the new Shares, which such
approvals have been obtained.
(n) None of the issue and sale of the Securities, the
consummation of any other of the transactions contemplated in this U.S.
Underwriting Agreement, the International Underwriting Agreement, the
Deposit Agreement or the Issuer Escrow Agreement, or the fulfillment of
the terms hereof or thereof will conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Subsidiaries pursuant
to, (i) the Memorandum and Articles of Association of the Company or the
constituent documents of any of the Subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement, permit, license, franchise or other agreement,
obligation, condition, covenant or instrument to which the Company or
any of the Subsidiaries is a party or bound or to which its or their
property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of the
Subsidiaries of any court, regulatory body, administrative agency,
governmental 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)
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above, such as would not individually or in the aggregate, have a
material adverse effect on (A) the performance of this U.S. Underwriting
Agreement or the consummation of any of the transactions contemplated
herein or (B) the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and the Subsidiaries,
taken as a whole.
(o) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectuses, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended
(the "1940 Act").
(p) No holders of securities of the Company have rights to
the registration of such securities under the Registration Statement or
the ADR Registration Statement except for such rights that have been
effectively waived.
(q) The consolidated historical financial statements and
schedules of the Company and the Subsidiaries (including the related
notes) included in the Registration Statement and the Prospectuses
present fairly in all material respects the financial condition, results
of operations, changes in financial position and cash flows as of the
dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been prepared in
conformity with United States generally accepted accounting principles
("U.S. GAAP") applied on a consistent basis throughout the periods
indicated (except as otherwise noted therein). The summary and selected
financial data included in the Registration Statement and the
Prospectuses fairly present in all material respects, on the basis
stated in the Registration Statement and the Prospectuses, the
information included therein.
(r) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of the Subsidiaries or its or their property is pending
or, to the knowledge of the Company, threatened that (i) could
reasonably be expected to have a material adverse effect on the
performance of this 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.
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(t) Neither the Company nor any of the Subsidiaries is in
violation or default of (i) any provision of its Memorandum and Articles
of Association or other constituent documents, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of the Subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or
any of the Subsidiaries or any of its or their properties, except, with
respect to clause (ii) or (iii) above, such as would not individually or
in the aggregate, have a material adverse effect on (A) the performance
of this 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 ("KPMG"), who have certified certain financial
statements of the Company and the Subsidiaries and delivered their
report with respect to the audited consolidated financial statements and
schedules included in the Registration Statement and the Prospectuses,
are independent public accountants with respect to the Company within
the meaning of the Act and the applicable published rules and
regulations thereunder.
(v) The Company has not taken, directly or indirectly, any
action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute under the Exchange Act
or otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities, provided, however, that this provision shall not apply to
any trading or stabilization activities conducted by the Underwriters.
(w) Each of the Company and the Subsidiaries possesses all
licenses, permits, certificates and other authorizations issued by the
appropriate Singapore, U.S., foreign, federal, state or local regulatory
authorities necessary to conduct its business as currently conducted,
except in any case in which the failure so to possess any such license,
permit, certificate or other authorization would not, individually or in
the aggregate, have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole. Neither the Company
nor any of the Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such license, permit,
certificate or authorization which, singly or in the aggregate, if the
subject of an unfavorable decision ruling or findings, would have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in the
Prospectuses (exclusive of any supplement thereto).
(x) Except as described in the Prospectuses, for the periods
described in the Prospectuses, the Company has no material capital
commitments.
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(y) No labor dispute with the employees of the Company or
any of the Subsidiaries exists or to the Company's best knowledge, is
threatened, and the Company is not aware of any existing labor
disturbance by the employees of any of its or any of the Subsidiaries',
that could have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectuses (exclusive of any supplement
thereto).
(z) Each of the Company and the Subsidiaries is insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses
in which it is engaged. All policies of insurance insuring the Company
or any of the Subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect; each of
the Company and the Subsidiaries is in compliance with the terms of such
policies and instruments in all material respects; and there are no
claims by the Company or any of the Subsidiaries under any such policy
or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause. Neither the Company nor
any of the Subsidiaries has been refused any insurance coverage sought
or applied for. The Company has no reason to believe that either the
Company or any of the Subsidiaries will not be able to renew its
existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto).
(aa) None of the Company's Subsidiaries is currently
prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on its capital stock, from
repaying to the Company any loans or advances to it from the Company or
from transferring any of its property or assets to the Company or the
other Subsidiary, except for certain restrictions as set forth in the
Joint Venture Agreement dated July 4, 1997 by and among the Company,
Agilent Technologies Europe BV and EDB Investments Pte Ltd (as amended)
or as described in or contemplated in the Prospectuses.
(bb) The Company and the Subsidiaries own, possess, license
or have other rights to use, on reasonable terms, all patents, patent
applications, trademarks, service marks, trade and service 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
10
<PAGE> 11
Factors" or "Business - Intellectual Property," to the Company's best
knowledge, (a) there are no rights of third parties to any such
Intellectual Property; (b) there is no material infringement by third
parties of any such Intellectual Property; (c) there is no pending or
threatened action, suit, proceeding or claim by others challenging the
Company's rights in or to any such Intellectual Property, and the
Company is unaware of any facts which would form a reasonable basis for
any such claim; (d) there is no pending or threatened action, suit,
proceeding or claim by others challenging the validity or scope of any
such Intellectual Property, and the Company is unaware of any facts
which would form a reasonable basis for any such claim; (e) there is no
pending or threatened action, suit, proceeding or claim by others that
the Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary right of others in any
Intellectual Property, and the Company is unaware of any other fact
which would form a reasonable basis for any such claim; and (f) there is
no prior art of which the Company is aware that may render any U.S.
patent held by the Company invalid or any U.S. patent application held
by the Company unpatentable which has not been disclosed to the U.S.
Patent and Trademark Office, in the case of any of (a) through (f)
above, which would have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole, whether or not
arising from the ordinary course of business.
(cc) Each of the Company and the Subsidiaries have
implemented a comprehensive, detailed program to analyze and address the
risk that the computer hardware and software used by them may be unable
to operate correctly with respect to calendar dates falling on or after
January 1, 2000 in the same manner, and with the same functionality, as
with respect to calendar dates falling on or before December 31, 1999
(the "Year 2000 Problem"), and the Company and each of the Subsidiaries
reasonably believes that such program has addressed the Year 2000
Problem with respect to the material operations of the Company and that
the Year 2000 Problem will not have a material adverse effect upon the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole.
(dd) The Company has filed all Singapore, U.S., foreign,
federal, state and local tax returns that are required to be filed or
has requested extensions thereof, except in any case in which the
failure so to file would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto) and has paid all taxes required to
be paid by it and any other assessment, fine or penalty levied against
it, to the extent that any of the foregoing is due and payable, except
for any such assessment, fine or penalty that is currently being
contested in good faith or as would not have a material adverse effect
on the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto).
11
<PAGE> 12
(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 and the Subsidiaries are (i) in compliance
with any and all Singapore laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws") applicable to conduct their respective businesses, (ii) have
received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) have not received notice
of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants, except where such non-compliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals, or liability would not, individually or in the
aggregate, have a material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
the Prospectuses (exclusive of any supplement thereto).
(hh) Each of the Company and the Subsidiaries has fulfilled
its obligations, if any, under the minimum funding standards of 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
12
<PAGE> 13
IV of ERISA, except such as would not, individually or in the aggregate,
have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole.
(ii) The Subsidiaries are the only significant subsidiaries
of the Company as defined by Rule 1.02 of Regulation S-X.
Any certificate signed by any officer of the Company or any of
the Subsidiaries, in his or her capacity as an officer of the Company or any of
the Subsidiaries, and delivered to you or counsel for the 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.
(II) Each Selling Shareholder (other than STS with respect to
paragraphs (d) and (f) to the extent they relate to the Custody Agreement),
severally and not jointly, represents and warrants to, and agrees with, each
U.S. Underwriter and the Company as follows:
(a) Such Selling Shareholder is the lawful owner of the
Ordinary Shares to be sold by such Selling Shareholder pursuant to this
Underwriting Agreement free and clear of all liens, encumbrances,
equities and claims whatsoever.
(b) Assuming that (i) Ordinary Shares to be purchased by any
Underwriter or to be delivered to the Depositary have been credited to
the Escrow Account (as defined in the Selling Shareholder Escrow
Agreement) in accordance with the provisions of the Selling Shareholder
Escrow Agreement and (ii) a certificate substantially in the form of
Annex A to the Selling Shareholder Escrow Agreement has been delivered
by a Selling Shareholder in accordance with the Selling Shareholder
Escrow Agreement, such Underwriter and the Depositary, as the case may
be, will own such Ordinary Shares free and clear of all liens,
encumbrances, equities and claims whatsoever.
(c) In the case of an Underwriter entitled to receive ADRs
evidencing ADSs, upon issuance by the Depositary of ADRs evidencing the
ADSs against deposit in accordance with the provisions of the Deposit
Agreement of the underlying Ordinary Shares being sold by such Selling
Shareholder under the Underwriting Agreements, such ADSs will be duly
and validly issued and persons in whose names such ADSs are duly
registered will be entitled to the rights specified in the ADSs and in
the Deposit Agreement. Assuming that an Underwriter acquires its
interest in such ADSs without notice of an adverse claim (within the
meaning of Section 8-105 of the UCC), such Underwriter that has
purchased such ADSs delivered to The Depository Trust Company by making
payment therefor as provided herein, and that has had such ADSs credited
to the securities account or accounts of such Underwriter maintained
with The Depository Trust Company or such other securities intermediary
will have acquired a security entitlement (within the meaning of Section
8-102(a)(17) of the UCC) to such ADSs purchased by such Underwriter, and
no action based on any such adverse claim (within the meaning of Section
8-102(a)(1) of the UCC) may be asserted against such Underwriter with
respect to such ADSs.
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<PAGE> 14
(d) Such Selling Shareholder's Ordinary Shares have been
placed in custody, for delivery pursuant to the terms of this
Underwriting Agreement, under a Custody Agreement and Power of Attorney
duly authorized (if applicable), executed and delivered by such Selling
Shareholder, in the form heretofore furnished to you (the "Custody
Agreement") with Salomon Smith Barney Inc. as the Custodian (the
"Custodian"); the Ordinary Shares so held in custody for each Selling
Shareholder are subject to the interests under this Underwriting
Agreement of the Underwriters; the arrangements for custody and delivery
of such Ordinary Shares made by such Selling Shareholder under this
Underwriting Agreement and under the Custody Agreement and the Selling
Shareholder Escrow Agreement are not subject to termination by any acts
of such Selling Shareholder, or by operation of law, whether by the
insolvency of such Selling Shareholder or the occurrence of any other
event; and if any such insolvency or any other such event shall occur
before the delivery of the Securities under this Underwriting Agreement,
subject to applicable Singapore law, Ordinary Shares will be delivered
by the Custodian and Escrow Agent in accordance with the terms and
conditions of this Underwriting Agreement, the Custody Agreement and the
Selling Shareholder Escrow Agreement as if such insolvency or other
event had not occurred, regardless of whether or not the Custodian and
Escrow Agent shall have received notice of such insolvency or other
event.
(e) Each of this U.S. Underwriting Agreement and the
International Underwriting Agreement has been duly authorized, executed
and delivered by such Selling Shareholder. The respective Selling
Shareholder Escrow Agreement has been duly authorized by the Selling
Shareholder and, on or prior to the Closing Date, will be duly executed
and delivered by the Selling Shareholder. No consent, approval
(including exchange control approval), authorization, filing with or
order of any court or governmental agency or body is required under
Singapore or U.S. federal law or the laws of any state or political
subdivision thereof for the consummation by such Selling Shareholder of
the transactions contemplated in this Underwriting Agreement, except
such as may have been obtained under the Act, the Exchange Act, the
Companies Act, Chapter 50 of Singapore, such as may be required under
the blue sky laws of any jurisdiction and the securities laws of any
jurisdiction outside the United States in connection with the purchase
and distribution of the Securities by the Underwriters in the manner
contemplated in the Underwriting Agreements and the Prospectuses and
such as may be required pursuant to the National Association of
Securities Dealers, Inc. rules or The Nasdaq Stock Market, Inc. rules,
which such approvals have been obtained.
(f) None of the execution and delivery of this Underwriting
Agreement, the Custody Agreement and the Selling Shareholder Escrow
Agreement, the deposit of the Underwritten Securities being sold by such
Selling Shareholder with the Depositary in accordance with the terms of
the Deposit Agreement, the Custody Agreement and the Selling Shareholder
Escrow Agreement, the sale of the Securities being sold by the Selling
Shareholder, the consummation of any other of the transactions
contemplated in this Underwriting Agreement by such Selling Shareholder
or the fulfillment of the terms hereof by such Selling Shareholder will
conflict with, result in a breach or violation of, or constitute a
default under (i) the charter or by-laws of such Selling Shareholder,
(ii) the terms of any indenture or other agreement or instrument to
which such Selling
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<PAGE> 15
Shareholder or any of its subsidiaries is a party or bound, or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable to
such Selling Shareholder or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over such Selling Shareholder or any of its
subsidiaries except, with respect to clause (ii) or (iii) above, such as
would not individually or in the aggregate, have a material adverse
effect on the performance of this Underwriting Agreement or the
consummation of any of the transactions contemplated herein.
(g) No stamp or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable by
or on behalf of the Underwriters to the Singapore government or any
political subdivision or taxing authority thereof (in the case of STS)
or the government in which the Selling Shareholder is domiciled or any
political subdivision or taxing authority thereof (in the case of other
Selling Shareholders) in connection with (A) the issuance of the ADSs
being sold by such Selling Shareholder under the Underwriting Agreements
in the manner contemplated by the Underwriting Agreements, (B) the
deposit with the Depositary of the Underwritten Securities being sold by
such Selling Shareholder under the Underwriting Agreements against
issuance of ADRs evidencing the ADSs, (C) the sale and delivery of the
Ordinary Shares and the ADSs being sold by the Selling Shareholder to
the Underwriters in accordance with the Underwriting Agreements, or (D)
except as disclosed in the Prospectuses under the heading
"Taxation--Singapore Taxation", the resale and delivery by the
Underwriters of the Ordinary Shares or the ADSs being sold by such
Selling Shareholder to the Underwriters in the manner contemplated in
the Prospectuses.
(h) Such Selling Shareholder has not taken, directly or
indirectly, any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute under
the Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Securities, provided, however, that this provision shall not apply
to any trading or stabilization activities conducted by the
Underwriters.
(i) The sale of the Securities by such Selling Shareholder
pursuant hereto is not prompted by any information concerning the
Company or any of its subsidiaries which is not set forth in the
Prospectuses or any supplement thereto.
(j) In respect of any statements in or omissions from the
Registration Statement and the ADR Registration Statement or the
Prospectuses or any supplements thereto made in reliance upon and in
conformity with information furnished in writing to the Company by such
Selling Shareholder specifically for use in connection with the
preparation thereof, such Selling Shareholder hereby makes the same
representations and warranties to each Underwriter and the Company as
the Company makes to such Underwriter under paragraph (I)(b) of this
Section. The Company and each Underwriter acknowledge that the
information set forth under the heading "Principal and Selling
Shareholders" constitutes the only information so furnished.
Any certificate signed by any officer of any Selling Shareholder and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the
15
<PAGE> 16
Securities shall be deemed a representation and warranty by such Selling
Shareholder, as to matters covered thereby, to each U.S. Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon
the representations and warranties set forth in this U.S. Underwriting
Agreement, the Company and each Selling Shareholder agrees, severally
and not jointly, to sell to each U.S. Underwriter, and each U.S.
Underwriter agrees, severally and not jointly, to purchase from the
Company and the Selling Shareholders, at a purchase price of US$65.00
per ADS and S$11.20 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 and STS hereby grant an option to the several
U.S. Underwriters to purchase, severally and not jointly, up to
7,020,000 and 5,139,000, respectively, 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 proportionally from the Company and STS in whole or in part at
any time (but not more than once) on or before the 30th day after the
date of the Prospectuses upon written or telegraphic notice by the U.S.
Representatives to the Company and STS 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
third Business Day prior to the Closing Date) shall be made at 9:00 AM, New York
City time, on May 9, 2000 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, the
Selling Shareholders 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 and the Selling Shareholders to or upon the
order of the Company and the Selling Shareholders by wire transfer payable in
same day funds to the accounts specified by the Company and the Selling
Shareholders. Delivery of
16
<PAGE> 17
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 that the settlement date for any U.S. Option Securities occurring
after the Closing Date shall occur simultaneously with the settlement date for
any International Option Securities occurring after the Closing Date under the
International Underwriting Agreement.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company and STS will
deliver (at their expense) to the U.S. Representatives, c/o Salomon Smith Barney
Inc. at 388 Greenwich Street, New York, New York 10013, on the date specified by
the U.S. Representatives (which shall be within three 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 and STS respectively, by wire transfer of U.S.
dollars and payable in same day funds to the accounts specified by the Company
and STS, respectively. If settlement for the U.S. Option Securities occurs after
the Closing Date, the Company and STS 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
17
<PAGE> 18
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, 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 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
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<PAGE> 19
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
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 Inc., offer, sell, contract to sell, pledge, or otherwise dispose
of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company) directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any Ordinary Shares or ADSs
or any securities convertible into, or exercisable, or exchangeable for,
Ordinary Shares or ADSs; or publicly announce an intention to effect any
such transaction, for a period of 120 days after the date of the
Underwriting Agreements, provided, however, that the Company may issue
and sell Ordinary Shares pursuant to any employee stock option plan or
stock ownership plan, and may file a Form S-8 with respect thereto.
(g) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Ordinary Shares or the
ADSs.
(h) Each of the Company and the Selling Shareholders (in
proportion to the number of Securities being offered by each of them,
including any Option Securities which the Underwriters shall have
elected to purchase), agrees, severally and not jointly, to pay the
costs and expenses relating to the following matters: (i) the fees and
expenses of its counsel (including local counsel) and accountants in
connection with the issue of the Securities, (ii) the preparation,
printing or reproduction and filing with the Commission of the
Registration Statement and the ADR Registration Statement (including
financial statements and exhibits thereto), each Preliminary Prospectus,
each Prospectus, and each amendment or supplement to any of them and
mailing and delivering (including postage, air freight charges and
charges for counting and packing) copies thereof to the initial
purchasers and dealers; (iii) the deposit of the underlying Ordinary
Shares under the Deposit Agreement, the issuance thereunder of ADSs
representing such deposited Ordinary Shares, the issuance of ADRs
evidencing such
19
<PAGE> 20
ADSs and the fees of the Depositary; (iv) all expenses relating
to the road show for the offering of the Securities, including the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective
purchasers of the Securities; (v) the preparation, printing,
authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with the
original issuance and sale of the Securities; (vi) the registration of
the Securities under the Exchange Act and the listing of the Ordinary
Shares and the ADSs on the SGX-ST and The Nasdaq National Market, Inc.,
respectively (such SGX-ST listing fees to be paid only by the Company,
however); (vii) any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD") (including filing
fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (viii) the fees and expenses of
the Authorized Agent (as defined in Section 15 hereof); (ix) the cost
and charges of any transfer agent or registrar; and (x) all other costs
and expenses incident to the performance by each of the Company and the
Selling Shareholders of its obligations under the Underwriting
Agreements.
(i) Each 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 and the U.S.
Underwriters pursuant to the Agreement Among U.S. Underwriters and
International Underwriters, (B) stabilization transactions contemplated
under the Agreement Among U.S. Underwriters and International
Underwriters, conducted through Salomon Smith Barney (or through the
U.S. Representatives and International Representatives) as part of the
distribution of the Securities, and (C) sales to or through (or
distributions of 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.
(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 and the
International Representatives to terminate the selling restrictions set
forth in paragraph (I)(i) of this Section 5, paragraph (I)(i) of Section
5 of the International Underwriting Agreement and Section 2(f) of the
Agreement Among U.S. Underwriters and International Underwriters; or
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(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 and the International 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 and the U.S. Representatives that the distribution of the
International Securities by the International Underwriters has not yet
been completed. If such notice by the U.S. Representatives or the
International 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 Selling Shareholder agrees with the several
Underwriters and the Company that:
(a) Except pursuant to the Underwriting Agreements, such
Selling Shareholder will not, without the prior written consent of
Salomon Smith Barney Inc., offer, sell, contract to sell, pledge or
otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to
cash settlement or otherwise) by the Selling Shareholder) directly or
indirectly, or file (or participate in the filing of) a registration
statement with the Commission in respect of, or establish or increase a
put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act with
respect to, any Ordinary Shares or ADSs or any securities convertible
into or exercisable or exchangeable for Ordinary Shares or ADSs, or
publicly announce an intention to effect any such transaction, for a
period of 120 days after the date of this U.S. Underwriting Agreement,
other than Ordinary Shares or ADSs disposed of as bona fide gifts
approved by Salomon Smith Barney Inc.
(b) Such Selling Shareholder will not take any action
designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Ordinary Shares or the
ADSs.
(c) Such Selling Shareholder will advise you promptly, and
if requested by you, will confirm such advice in writing, so long as
delivery of a prospectus relating to the Securities by an underwriter or
dealer may be required under the Act, of (i) any material change in the
Company's condition (financial or otherwise), prospects, earnings,
business or properties which comes to the attention of such Selling
Shareholder, (ii) any change in information in the Registration
Statement, the ADR Registration Statement or the Prospectuses relating
to such Selling Shareholder or (iii) any new material information
relating to the Company or relating to any matter stated in the
Prospectuses which comes to the attention of such Selling Shareholder.
(d) Such Selling Shareholder will comply with the agreement
contained in Section 5(I)(h).
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<PAGE> 22
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
and each of the Selling Shareholders 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 each of the Selling Shareholders made in any certificates pursuant to the
provisions hereof, to the performance by the Company and each of the Selling
Shareholders of their respective obligations under this 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 and STS shall have requested and caused
Allen & Gledhill, Singapore counsel for the Company and STS, to have
furnished to the Representatives their opinion, dated the Closing Date
and addressed to the Representatives substantially in the form set forth
in Appendix A.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of the federal laws of the United
States and the laws of the State of New York, to the extent they deem
proper and specified in such opinion, upon the opinion of Latham &
Watkins 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 and STS shall have furnished to the
Representatives the opinion of Latham & Watkins, United States counsel
for the Company and STS, 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, STS and public officials. References to the
Prospectuses in this paragraph (c) include any supplements thereto at
the Closing Date.
(d) [Intentionally Omitted]
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<PAGE> 23
(e) 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.
(f) 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 and each Selling Shareholder shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(g) The Company shall have furnished to the Representatives
a certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that
23
<PAGE> 24
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).
(h) Each Selling Shareholder shall have furnished to the
Representatives a certificate, signed by the Chairman of the Board or
the President and the principal financial or accounting officer of such
Selling Shareholder, dated the Closing Date, to the effect that (1) in
the case of STS, the signers of such certificate have carefully examined
the Registration Statement, the ADR Registration Statement, the
Prospectuses, any supplement to either of the Prospectuses and this U.S.
Underwriting Agreement and the International Underwriting Agreement and
(2) in the case of each Selling Shareholder, the representations and
warranties of such Selling Shareholder in this U.S. Underwriting
Agreement and the International Underwriting Agreement are true and
correct in all material respects on and as of the Closing Date to the
same effect as if made on the Closing Date.
(i) The Company shall have requested and caused KPMG to have
furnished to the Representatives at the Execution Time and at the
Closing Date a letter or letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to
the Representatives, 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> 25
(ii) on the basis of a reading of the latest
unaudited condensed consolidated financial statements made
available by the Company and Chartered Semiconductor
Manufacturing Inc.; their limited review, in accordance with
United States generally accepted auditing standards under
Statement on Auditing Standards No. 71 of the three-month period
ended March 31, 2000, and as at March 31, 2000; carrying out
certain specified procedures (but not an examination in
accordance with U.S. GAAP) which would not necessarily reveal
matters of significance with respect to the comments set forth
in such letter; a reading of the minutes of the meetings of the
shareholders, Board of Directors and Audit Committee of the
Company; and inquiries of certain officials of the Company who
have responsibility for financial and accounting matters of the
Company and Chartered Semiconductor Manufacturing Inc. as to
transactions and events subsequent to March 31, 2000, such
Company officials advising that no consolidated financial
statements are available as of any date or for any period
subsequent to March 31, 2000, 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 March
31, 2000, there were any changes, at a specified date
not more than five Business Days prior to the date of
the letter, in the share capital of the Company (except
as disclosed in the Registration Statement), any
increase in long-term debt (excluding current
installments) or in total current liabilities, or any
decrease in shareholders' equity of the consolidated
companies as compared with the amounts shown on the
March 31, 2000 unaudited condensed consolidated balance
sheet, or for the period from April 1, 2000 to May 2,
2000 there was any decrease, as compared with the
corresponding period in the preceding year, in
consolidated net revenue of the Company, except in all
instances for changes, increases or decreases set forth
in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not
deemed necessary by the Representatives; 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 Semiconductor Manufacturing Inc. set forth in the
Registration Statement and the Prospectuses, including the
information set forth under the captions "Summary," "Risk
Factors," "Use of Proceeds," "Dividend Policy,"
"Capitalization," "Dilution," "Selected Financial Data,"
"Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Business," "Management," "Principal and
Selling Shareholders," "Relationship with Singapore
Technologies", "Description of Ordinary Shares," and "Shares
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<PAGE> 26
Eligible for Future Sale" agrees with or is recomputed from the
accounting records of the Company and the Subsidiaries,
excluding any questions of legal interpretation.
References to the Prospectuses in this paragraph (i) include any
supplement thereto at the date of the letter.
(j) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof), and the Prospectuses (exclusive of
any supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph (i)
of this Section 6 or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Prospectuses (inclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof), the ADR
Registration Statement and the Prospectuses (exclusive of any supplement
thereto).
(k) At the Execution Time, the Company shall have furnished
to the Representatives a letter substantially in the form of Exhibit A
hereto from each shareholder of the Company listed in Schedule III
hereto.
(l) The Deposit Agreement shall be in full force and effect,
and shall not have been amended except as approved by the
Representatives.
(m) The Depositary shall have furnished or caused to be
furnished to the Representatives certificates satisfactory to the
Representatives evidencing the deposit with the Depositary or its
nominee of the Ordinary Shares in respect of which ADSs to be purchased
by the Underwriters on such Closing Date are to be issued, and the
execution, issuance, countersignature (if applicable) and delivery of
the ADRs evidencing such ADSs pursuant to the Deposit Agreement and such
other matters related thereto as the Representatives shall reasonably
request.
(n) The closing of the purchase of the International
Underwritten Securities to be issued and sold pursuant to the
International Underwriting Agreement shall occur substantially
concurrently (giving effect to the time difference between New York and
Singapore) with the closing of the purchase of the U.S. Underwritten
Securities described herein.
(o) The Ordinary Shares shall have been listed and admitted
and authorized for trading on the SGX-ST, and the ADSs shall have been
included for quotation on The Nasdaq National Market, Inc., and
satisfactory evidence of all such actions shall have been provided to
the Representatives.
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<PAGE> 27
(p) Prior to the Closing Date, the Company and the Selling
Shareholders shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this 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 and each Selling Shareholder in writing or by telephone or facsimile
confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the offices of Cleary, Gottlieb, Steen & Hamilton, counsel for the
Underwriters, at 39th Floor, Bank of China Tower, One Garden Road, Central, Hong
Kong, on the Closing Date.
7. Commissions, Costs and Expenses. In consideration of the
agreement by the 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 and the Selling
Shareholders (in proportion to the number of securities offered by each of
them), severally but not jointly, 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 1.06 per
cent. and a selling commission of 1.59 per cent. in respect of the U.S.
Underwritten Shares or the U.S. Option Shares, as the case may be. The amounts
payable by the Selling Shareholders to the U.S. Underwriters pursuant to this
Section 7 shall be deducted from the amounts payable by the U.S. Underwriters to
the Selling Shareholders pursuant to Section 2.
8. Reimbursement of Underwriters' Expenses. The Company and
each Selling Shareholder have agreed, severally but not jointly (in proportion
to the number of securities being offered by each of them, including any Option
Securities which the Underwriters shall have elected to purchase), to reimburse
the Underwriters through 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, up to an aggregate maximum of $500,000 for the Global Offering.
The amounts payable by the Selling Shareholders to the U.S. Underwriters
pursuant to this Section 8 shall be deducted from the amounts payable by the
U.S. Underwriters to the Selling Shareholders pursuant to Section 2. In
addition, if the sale of the Securities provided for under the Underwriting
Agreements is not consummated because any condition to the obligations of the
U.S. Underwriters or the International Underwriters set forth in Section 6 of
the Underwriting Agreements is not satisfied, because of any termination
pursuant to Section 11 of the Underwriting Agreements or because of any refusal,
inability or failure on the part of the Company or any Selling Shareholders to
perform any agreement under the Underwriting Agreements or comply with any
provision of the Underwriting Agreements other than by reason
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<PAGE> 28
of a default by any of the Underwriters, the Company and each Selling
Shareholder will, severally but not jointly (in proportion to the number of
securities being offered by each of them, including any Option Securities which
the Underwriters shall have elected to purchase), reimburse the Underwriters
through 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 for the Global Offering. If
the Company (to the extent permitted by applicable law) makes any payments to
the Underwriters under this Section 8 because of any Selling Shareholder's
refusal, inability or failure to satisfy any condition to the obligations of the
Underwriters set forth in Section 6, the Selling Shareholders shall each
reimburse the Company on demand for all amounts so paid, pro rata in proportion
to the percentage of Securities to be sold by them.
9. Indemnification and Contribution.
(a) The Company (to the extent permitted by
applicable law) and STS jointly and severally agree to indemnify and
hold harmless each 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 or in any amendment thereof, or in any Preliminary Prospectus or
in either of the Prospectuses, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees
to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company and STS will not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of any 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 or STS
may otherwise have; provided further, that with respect to any untrue
statement or omission of material fact made in any Preliminary
Prospectus, the indemnity agreement contained in this Section 9(a) shall
not inure to the benefit of any U.S. Underwriter from whom the person
describing 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 each 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
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<PAGE> 29
of the Prospectus to the Representatives, (x) delivery of the Prospectus
was required by the Act to be made to such person, (y) the untrue
statement or omission of a material fact contained in the Preliminary
Prospectus was corrected in the Prospectus and (z) there was not sent or
given to such person, at or prior to the written confirmation of the
sale of such Securities to such person, a copy of the Prospectus.
(b) Each 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 and STS, 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 and STS acknowledge that (A)
the names of the Underwriters contained in any Preliminary Prospectus or
either of the Prospectuses and their respective participation in the
sale of the Securities as set forth in the two charts under the heading
"Underwriting" in any Preliminary Prospectus or either of the
Prospectuses, (B) the statements set forth in the last paragraph on the
front cover page of any Preliminary Prospectus or either of the
Prospectuses regarding delivery of the Securities (and the ADSs
representing such Securities) and (C) the statements set forth in the
seventh, ninth, thirteenth and fifteenth paragraphs under the heading
"Underwriting" in any Preliminary Prospectus or either of the
Prospectuses constitute the only information furnished in writing by or
on behalf of the several U.S. Underwriters for inclusion in any
Preliminary Prospectus or either of the Prospectuses.
(c) Promptly after receipt by an indemnified party under
this Section 9 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 9, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it
did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying
party shall be entitled to appoint counsel of the indemnifying party's
choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees
and expenses of any separate counsel retained by the indemnified party
or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local
counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party
would present such
29
<PAGE> 30
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action
or (iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party. It is
understood, however, that the Company shall, in connection with any one
such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of only one separate
firm of attorneys (in addition to any local counsel) at any time for all
such Underwriters and controlling persons, which firm shall be
designated in writing by 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.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 9 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company (to the extent
permitted by applicable law), STS and the 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, STS 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, by STS 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 allocation provided by the
immediately preceding sentence is unavailable for any reason, the
Company (to the extent permitted by applicable law), STS 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, of STS 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 and by STS shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) received by each of them,
and benefits received by the 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
30
<PAGE> 31
reference to, among other things, whether any alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company, by STS or
by the 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, STS 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 (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person who
controls an 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 (d).
(e) The liability of each Selling Shareholder under its
representations and warranties contained in Section 1 hereof (and of STS
under the indemnity and contribution agreements contained in this
Section 9) shall be limited to an amount equal to the offering price of
the U.S. Securities sold by such Selling Shareholder to the U.S.
Underwriters net of underwriting and selling commissions paid by such
Selling Shareholder under this Agreement. The Company and the Selling
Shareholders may agree, as among themselves and without limiting the
rights of the U.S. Underwriters under this U.S. Underwriting Agreement,
as to the respective amounts of such liability for which they each shall
be responsible.
10. Default by an Underwriter. If any one or more 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, the Selling Shareholders 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
31
<PAGE> 32
U.S. 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 U.S. Underwriter of its liability,
if any, to the Company, the Selling Shareholders 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 SGX-ST, trading
in securities generally on the New York Stock Exchange, The Nasdaq National
Market, Inc. or the SGX-ST shall have been suspended or limited or minimum
prices shall have been established on such exchange or The Nasdaq National
Market, Inc., (ii) a banking moratorium shall have been declared either by U.S.
Federal, New York State or Singapore authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities involving the United States
or Singapore, declaration by the United States or Singapore of a 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, of each Selling Shareholder 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, any Selling Shareholders or the Company or any
of the officers, directors or controlling persons referred to in Section 9
hereof, and will survive delivery of and payment for the 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)
362-2909) and confirmed to it at 60 Woodlands Industrial Park D, Street 2,
Singapore 738406, Attention: Legal Department; or if sent to any Selling
Shareholder, will be mailed, delivered or telefaxed and confirmed to it at the
address set forth in Schedule II hereto.
14. Successors. This U.S. Underwriting Agreement will inure
to the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors, employees, agents and controlling
persons referred to in Section 9 hereof, and no other person will have any right
or obligation under this U.S. Underwriting Agreement.
32
<PAGE> 33
15. Jurisdiction. Each of the Company and STS 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 be instituted in any New York Court; and waives any objection which
it may now or hereafter have to the laying of venue of any such proceeding, and
irrevocably accepts and submits to the non-exclusive jurisdiction of such courts
in any suit, action or proceeding. Each of the Company and STS has appointed
Chartered Semiconductor Manufacturing, Inc., at 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. Each of the Company and STS consents to process being served in any
action or proceeding by mailing a copy thereof by registered or certified mail
to the Authorized Agent. Each of the Company and STS hereby represents and
warrants that the Authorized Agent has accepted such appointment and has agreed
to act as said agent for service of process, and the Company agrees to take any
and all action, including the filing of any and all documents that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent shall be deemed, in every respect,
effective service of process upon the Company and STS. Notwithstanding the
foregoing, any action arising out of or based upon this Agreement may be
instituted by any 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 each of the Company and the
Selling Shareholders 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 or the Selling Shareholder
making such payment will pay such additional amounts, in the relevant currency,
as may be necessary to compensate for the shortfall. If, alternatively, the
amount in the relevant currency that may be so purchased for any reason exceeds
the amount originally due, the party
33
<PAGE> 34
entitled to receive such original amount will return such excess amounts, in the
relevant currency, to the Company or the Selling Shareholders. Any obligation of
the Company or the Selling Shareholders not discharged by such payment will, to
the fullest extent permitted by applicable law, be due as a separate and
independent obligation and, until discharged as provided herein, will continue
in full force and effect.
18. Waiver of Immunity. To the extent that the Company or
the Selling Shareholders has or hereafter may acquire any immunity (sovereign or
otherwise) from any legal action, suit or proceeding, from jurisdiction of any
court or from set-off or any legal process (whether service or notice,
attachment in aid or otherwise) with respect to itself or any of its property,
each of the Company and each of the Selling Shareholders hereby irrevocably
waives and agrees not to plead or claim such immunity in respect of its
obligations under this Agreement.
19. Counterparts. This 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.
34
<PAGE> 35
"Execution Time" shall mean the date and time that this U.S.
Underwriting Agreement is executed and delivered by the parties hereto.
"International Offering Memorandum" shall mean such form of
offering memorandum relating to the International Securities.
"International Preliminary Offering Memorandum" shall mean any
preliminary offering memorandum with respect to the offering of the
International Securities.
"International Representatives" shall mean the addressees of 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 relating to
the sale of the International Securities by the Company and the selling
shareholders named therein to the International Underwriters.
"New York Courts" shall mean the U.S. Federal or State courts
located in the State of New York, County of New York.
"Option Securities" shall mean the U.S. Option Securities and
the International Option Securities.
"Option Shares" shall mean the U.S. Option Shares and the
International Option Shares.
"Preliminary Prospectuses" and each "Preliminary Prospectus"
shall mean the U.S. Preliminary Prospectus and the International
Preliminary Offering Memorandum.
"Prospectuses" and "each Prospectus" shall mean the U.S.
Prospectus and the International Offering Memorandum.
"RCB" shall mean the Singapore Registrar of Companies and
Businesses.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended or such Rule
462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
35
<PAGE> 36
"Representatives" shall mean the U.S. Representatives and the
International Representatives.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under
the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Securities" shall mean the U.S. Securities and the
International Securities.
"Selling Shareholders" shall mean the persons named on Schedule
II to the U.S. Underwriting Agreement and, for purposes only of
calculating expenses payable pursuant to Section 5(I)(h), Schedule II to
the International Underwriting Agreement.
"Shares" shall mean the U.S. Shares and the International
Shares.
"Statement" shall mean the Statement of Material Facts filed
with the RCB.
"STS" shall mean Singapore Technologies Semiconductors Pte Ltd.
"Subsidiary" shall mean each of Chartered Semiconductor
Manufacturing Inc. and Chartered Silicon Partners Pte Ltd.
"Underwriter" and "Underwriters" shall mean the U.S.
Underwriters and the International Underwriters.
"Underwritten Securities" shall mean the U.S. Underwritten
Securities and the International Underwritten Securities.
"Underwritten Shares" shall mean the U.S. Underwritten Shares
and the International Underwritten Shares.
"United States or Canadian Person" shall mean any person who is
a national or resident of the United States or Canada, any corporation,
partnership, or other entity created or organized in or under the laws
of the United States or Canada or of any political subdivision thereof,
or any estate or trust the income of which is subject to United States
or Canadian Federal income taxation, regardless of its source (other
than any non-United States or non-Canadian branch of any United States
or Canadian Person), and shall include any United States or Canadian
branch of a person other than a United States or Canadian Person.
36
<PAGE> 37
"U.S." or "United States" shall mean the United States of
America (including the states thereof and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction.
"U.S. Preliminary Prospectus" shall mean any preliminary
prospectus with respect to the offering of the U.S. Securities referred
to in paragraph 1(a) above and any preliminary prospectus with respect
to the offering of the U.S. Securities, as the case may be, included in
the Registration Statement at the Effective Date that omits Rule 430A
Information.
"U.S. Prospectus" shall mean the prospectus relating to the U.S.
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"U.S. Representatives" shall mean the addressees of the U.S.
Underwriting Agreement.
"U.S. Securities" shall mean the U.S. Underwritten Securities
and the U.S. Option Securities.
"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 and the Selling
Shareholders to the U.S. Underwriters.
37
<PAGE> 38
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, the Selling Shareholders and the several U.S. Underwriters.
Very truly yours,
Chartered Semiconductor Manufacturing
Ltd
By: /s/ CHIA SONG HWEE
------------------------------------
Name: Chia Song Hwee
Title: Senior Vice President and
Chief Financial Officer
Singapore Technologies Semiconductors Pte Ltd
By: /s/ PREMOD PAUL THOMAS
------------------------------------
Name: Premod Paul Thomas
Title: Director, Finance
By: /s/ GAN CHEE YEN
------------------------------------
Name: Gan Chee Yen
Title: Group Financial Controller
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.
38
<PAGE> 39
ANNEX A
List of Subsidiaries
Chartered Semiconductor Manufacturing, Inc.
Chartered Silicon Partners Pte Ltd
<PAGE> 40
SCHEDULE I
<TABLE>
<CAPTION>
Number of
U.S. Underwriter U.S. Underwritten Shares
- ---------------- ------------------------
<S> <C>
Salomon Smith Barney Inc. .......................... 27,560,400
Credit Suisse First Boston Corporation.............. 24,318,000
Chase Securities Inc. .............................. 9,727,200
SG Cowen Securities Corporation..................... 9,727,200
Wit SoundView Corporation........................... 9,727,200
----------
Total............................................... 81,060,000
</TABLE>
<PAGE> 41
SCHEDULE II
<TABLE>
<CAPTION>
Number of
Selling Shareholder U.S. Underwritten Shares
- ------------------- ------------------------
<S> <C>
Singapore Technologies Semiconductors Pte Ltd........ 34,260,000
51 Cuppage Road #09-01
Singapore 229469
</TABLE>
<PAGE> 42
SCHEDULE III
List of Signatories to Letter Attached as Exhibit A
---------------------------------------------------
1. Singapore Technologies Pte Ltd
2. Alliance Semiconductor Corporation
3. Analog Devices, Inc.
4. Actel Corporation
<PAGE> 43
EXHIBIT A
Chartered Semiconductor Manufacturing Ltd
Public Offering of Ordinary Shares
May , 2000
Salomon Smith Barney Inc.
Salomon Brothers International Limited
Credit Suisse First Boston Corporation
Credit Suisse First Boston (Singapore) Limited
Chase Securities Inc.
Chase Manhattan International Limited
Overseas Union Bank Limited
SG Cowen Securities Corporation
SG Securities (Singapore) Pte. Ltd.
Vickers Ballas & Company Pte Ltd
Wit SoundView Corporation
As Representatives of the several U.S. Underwriters
and International Underwriters
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
U.S.A.
Ladies and Gentlemen:
This letter is being delivered to you in connection with the
proposed U.S. Underwriting Agreement and International Underwriting Agreement
(the "Underwriting Agreements"), between Chartered Semiconductor Manufacturing
Ltd, a corporation organized under the laws of Singapore (the "Company"), the
Selling Shareholders named therein (the "Selling Shareholders"), and you as
representatives of the group of U.S. and International Underwriters named
therein, relating to an underwritten public offering of ordinary shares (the
"Ordinary Shares") of the Company, directly or in the form of American
Depositary Shares ("ADSs").
In order to induce you and the other U.S. Underwriters and
International Underwriters to enter into the Underwriting Agreements, the
undersigned will not, without the prior consent of Salomon Smith Barney Inc.,
offer, sell, contract to sell, pledge or otherwise dispose of (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise), directly or indirectly, or announce the offering of, any Ordinary
Shares or ADSs or any securities convertible into, or exercisable or
exchangeable for, Ordinary Shares or ADSs, for a period of 120 [90] days
following the date of the Underwriting Agreements, other than Ordinary Shares or
ADSs [(i)] disposed of as bona fide gifts approved by Salomon Smith
<PAGE> 44
Barney Inc. [or (ii) used by the undersigned in the acquisition of the equity
capital or substantially all of the assets of any other person or entity;
provided that such other person or entity agrees to enter into a lock-up
agreement with you that is substantially similar to this letter for the
remaining portion of such 90-day period and such acquisition is approved by
Salomon Smith Barney Inc.](1)
If for any reason the Underwriting Agreements shall be terminated
prior to the Closing Date (as defined in the Underwriting Agreements), the
agreement set forth above shall likewise be terminated.
Yours very truly,
[Signature]
[Name and address]
- ----------
1 Use bracketed text for all signatories other than ST.
<PAGE> 45
APPENDIX A
[LEGAL OPINION OF ALLEN & GLEDHILL]
A-1
<PAGE> 46
APPENDIX B
[LEGAL OPINION OF LATHAM & WATKINS]
B-1
<PAGE> 1
Execution Copy
EXHIBIT 1.2
Chartered Semiconductor Manufacturing Ltd
54,040,000 Ordinary Shares*
directly or in the form of American Depositary Shares
(S$0.26 par value)
Each American Depositary Share representing
the right to receive ten Ordinary Shares
International Underwriting Agreement
London, England
May 4, 2000
Salomon Brothers International Limited
Credit Suisse First Boston (Singapore) Limited
Chase Manhattan International Limited
Overseas Union Bank Limited
SG Securities (Singapore) Pte. Ltd.
Vickers Ballas & Company Pte Ltd
Wit SoundView Corporation
As International Representatives of the several International
Underwriters
c/o Salomon Brothers International Limited
Victoria Plaza
111 Buckingham Palace Road
London SW1W 0SB
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, 31,200,000 ordinary shares (the "Ordinary Shares"), S$0.26 par
value per share, of the Company directly or in the form of American Depositary
Shares (the "ADSs") and each of the Selling Shareholders named in Schedule II
hereto proposes to sell to the several International Underwriters the number of
Ordinary Shares directly or in the form of ADSs set forth opposite its name on
Schedule II aggregating 22,840,000 Ordinary Shares (said Ordinary Shares to be
issued and sold by the Company and the Selling Shareholders being hereinafter
called the "International Underwritten Shares"). The Company and Singapore
Technologies Semiconductors Pte Ltd ("STS") also propose to grant to
- --------
* Plus an option to purchase from Chartered Semiconductor Manufacturing Ltd and
Singapore Technologies Semiconductors Pte Ltd up to 4,680,000 and 3,426,000,
respectively, additional Ordinary Shares directly or in the form of American
Depositary Shares to cover overallotments.
<PAGE> 2
the International Underwriters an option to purchase up to 4,680,000 and
3,426,000, respectively, additional Ordinary Shares directly or in the form of
ADSs to cover overallotments (the "International Option Shares" and together
with the International Underwritten Shares, the "International Shares" or the
"International Securities").
It is understood that the Company and certain selling shareholders are
concurrently entering into the U.S. Underwriting Agreement, dated May 4, 2000
(together with this International Underwriting Agreement, the "Underwriting
Agreements"), providing for the sale by the Company and such selling
shareholders of an aggregate of 81,060,000 Ordinary Shares directly or in the
form of ADSs (said Ordinary Shares to be sold by the Company and such selling
shareholders pursuant to the U.S. Underwriting Agreement being hereinafter
called the "U.S. Underwritten Shares", and together with the International
Underwritten Shares, the "Underwritten Shares") and providing for the grant to
the U.S. Underwriters of an option to purchase from the Company and STS up to
7,020,000 and 5,139,000, respectively, additional Ordinary Shares directly or in
the form of ADSs to cover overallotments (the "U.S. Option Shares" and together
with the U.S. Underwritten Shares, the "U.S. Shares" or the "U.S. Securities",
and the U.S. Securities together with the International Securities, the
"Securities").
In connection with the Global Offering (as defined below), the Company
has made a listing application to the Singapore Exchange Securities Trading
Limited (the "SGX-ST") and has lodged a Statement of Material Facts (the
"Statement") with the Singapore Registrar of Companies and Businesses ("RCB") to
invoke the exemption from the prospectus registration requirements under Section
106F of the Companies Act, Chapter 50 of Singapore.
You have also advised the Company and the Selling Shareholders that the
Underwriters may elect to cause the Company to deposit on their behalf all or
any portion of the Ordinary Shares to be purchased by them under the
Underwriting Agreements pursuant to the Deposit Agreement, dated as of November
4, 1999 (the "Deposit Agreement"), entered into among the Company, Citibank,
N.A., as depositary (the "Depositary") and all holders from time to time of the
ADSs. Upon any such deposit of Ordinary Shares, the Depositary will issue ADSs
representing the Ordinary Shares so deposited. The ADSs will be evidenced by
American Depositary Receipts (the "ADRs"). Each ADS will represent ten Ordinary
Shares and each ADR may represent any number of ADSs.
Prior to the Closing Date (as defined below), the Ordinary Shares to be
issued and sold by the Company will be delivered into escrow to be held by
Citibank Nominees Singapore Pte Ltd, as escrow agent (the "Escrow Agent"),
pursuant to an escrow agreement (the "Issuer Escrow Agreement") to be entered
into between the Company, the Escrow Agent and the Underwriters. Prior to the
Closing Date, the Ordinary Shares to be sold by each Selling Shareholder will be
delivered into escrow to be held by the Escrow Agent pursuant to an escrow
agreement (each, a "Selling Shareholder Escrow Agreement") to be entered into
between a Selling Shareholder, the custodian for such Selling Shareholder, the
Escrow Agent and the Underwriters.
Unless the context otherwise requires, the terms "Underwritten
Securities", "Option Securities", "U.S. Underwritten Securities", "U.S. Option
Securities", "U.S. Securities", "International Underwritten Securities",
"International Option Securities", "International
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Securities" and "Securities" shall be deemed to refer, respectively, to
Underwritten Shares, Option Shares, U.S. Underwritten Shares, U.S. Option
Shares, U.S. Shares, International Underwritten Shares, International Option
Shares, International Shares and Shares, as well as, in each case, to any ADSs
representing such securities.
It is further understood and agreed that the U.S. Underwriters and the
International Underwriters have entered into an Agreement Among U.S.
Underwriters and International Underwriters, dated the date hereof (the
"Agreement Among U.S. Underwriters and International Underwriters"), pursuant to
which, among other things, the International Underwriters may purchase from the
U.S. Underwriters a portion of the U.S. Securities to be sold pursuant to the
U.S. Underwriting Agreement and the U.S. Underwriters may purchase from the
International Underwriters a portion of the International Securities to be sold
pursuant to this International Underwriting Agreement.
The offering of the International Shares, directly or in the form of
ADSs, is referred to herein as the "International Offering"; and the offering of
the U.S. Shares, directly or in the form of ADSs, is referred to herein as the
"U.S. Offering". The U.S. Offering and International Offering are referred to
collectively as the "Global Offering".
To the extent there are no additional International Underwriters listed
on Schedule I other than you, the term International Representatives as used in
this International Underwriting Agreement shall mean you, as International
Underwriters, and the terms International Representatives and International
Underwriters shall mean either the singular or plural as the context requires.
In addition, to the extent that there is not more than one Selling Shareholder
named in Schedule II, the term Selling Shareholders, shall mean the singular.
The use of the neuter in this International Underwriting Agreement shall include
the feminine and masculine wherever appropriate.
Certain terms used in this International Underwriting Agreement are
defined in Section 21 hereof.
1. Representations and Warranties. (I) The Company and, except as to
paragraphs (i), (n) (other than clause (i) thereof), (q), (r), (s), (t) (other
than clause (i) thereof), (v), (w), (x), (y), (z), (aa), (bb), (cc), (dd), (ff),
(gg) and (hh) below, STS jointly and severally represent and warrant to, and
agree with, each International Underwriter as set forth below in this Section 1.
(a) The Company has filed with the Commission a registration
statement (file number 333-34194) on Form F-1, including the related
U.S. Preliminary Prospectus, for the registration under the Act of the
offering and sale of the U.S. Securities. The Company may have filed one
or more amendments thereto, including the related U.S. Preliminary
Prospectus, which have previously been furnished to you. The Company
will next file with the Commission either (1) prior to the Effective
Date of the Registration Statement, a further amendment to the
Registration Statement (including the form of U.S. Prospectus) or (2)
after the Effective Date of the Registration Statement, the U.S.
Prospectus in accordance with Rules 430A and 424(b). In the case of
clause (2), the Company has included in the Registration Statement, as
amended at the Effective Date,
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<PAGE> 4
all information (other than Rule 430A Information) required by the Act
and the rules thereunder to be included in the Registration Statement
and the U.S. Prospectus with respect to the Ordinary Shares and the
offering thereof directly or in the form of ADSs. As filed, such
amendment and form of final U.S. Prospectus, or such U.S. Prospectus, as
the case may be, shall contain all Rule 430A Information, together with
all other such required information, with respect to the underlying
Ordinary Shares and the offering thereof directly or in the form of
ADSs, and, except to the extent the U.S. Representatives shall agree to
a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest U.S. Preliminary Prospectus) as the Company has advised you,
prior to the Execution Time, will be included or made therein.
It is understood that two forms of offering documents are to be
used in connection with the Global Offering and sale of the Securities:
one form of prospectus relating to the U.S. Securities, which are to be
offered and sold to United States and Canadian Persons, and one form of
offering memorandum relating to the International Securities, which are
to be offered and sold to persons other than United States and Canadian
Persons. The U.S. Prospectus and the International Offering Memorandum
are identical except for the outside front cover page and the outside
back cover page.
(b) On the Effective Date, the Registration Statement did or
will, and when the U.S. Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date and on any date on
which Option Securities are purchased, if such date is not the Closing
Date (a "settlement date"), each U.S. Prospectus (and any supplements
thereto) will comply in all material respects with the applicable
requirements of the Act and the rules thereunder; on the Effective Date
and at the Execution Time, the Registration Statement did not or will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and, on the Effective Date,
each Prospectus, if not filed pursuant to Rule 424(b), did not and will
not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date and any settlement date, each Prospectus (together with any
supplement thereto) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company and STS
make no representations or warranties as to the information contained in
or omitted from the Registration Statement, or the Prospectuses (or any
supplement thereto), in reliance upon and in conformity with information
furnished herein or in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in
the Registration Statement or the Prospectuses (or any supplement
thereto). It is understood that the information that has been furnished
in writing by or on behalf of the several Underwriters for inclusion in
the Registration Statement, Preliminary Prospectuses or the Prospectuses
is limited to (A) the names of the Underwriters and their respective
participation in the sale of the Securities as set forth in the two
charts under the heading "Underwriting" in the Preliminary Prospectuses
or Prospectuses, (B) the statements set forth in the last paragraph on
the front cover page of the Preliminary Prospectuses or Prospectuses
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<PAGE> 5
regarding delivery of the Securities (and the ADSs representing such
Securities) and (C) the statements set forth in the seventh, ninth,
thirteenth and fifteenth paragraphs under the heading "Underwriting" in
the Preliminary Prospectuses or Prospectuses.
(c) The Company has filed with the Commission registration
statements (file numbers 333-88623 and 333-34692) on Form F-6
(collectively, the "ADR Registration Statement") for the registration
under the Act of the offering and sale of the ADSs. The Company may have
filed one or more amendments thereto, each of which has previously been
furnished to you. Such ADR Registration Statement at the time of its
effectiveness did or will comply and on the Closing Date, will comply,
in all material respects with the applicable requirements of the Act and
the rules thereunder and at the time of its Effective Date and at the
Execution Time, did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(d) Each of the Company and the Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of
the jurisdiction in which it is incorporated with full corporate power
to own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectuses, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified or be in good
standing would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and the Subsidiaries,
taken as a whole.
(e) All the outstanding share capital of each Subsidiary has
been duly and validly authorized and issued and is fully paid and
non-assessable and, except for such shares of Chartered Silicon Partners
Pte Ltd ("CSP") as are owned by Agilent Technologies Europe BV or EDB
Investments Pte Ltd which shares do not exceed 49% of the outstanding
voting shares of CSP, all the outstanding shares of capital stock of the
Subsidiaries are owned by the Company directly free and clear of any
perfected security interests, liens or encumbrances.
(f) The Company's authorized, issued and outstanding equity
capitalization is as set forth in the Prospectuses. The outstanding
Ordinary Shares have been duly and validly authorized and issued and are
fully paid and non-assessable. The Ordinary Shares being sold by the
Company under the Underwriting Agreements have been duly and validly
authorized, and, when issued and delivered to the Depositary or its
nominee in accordance with the Deposit Agreement and the Issuer Escrow
Agreement, to the International Underwriters in accordance with this
International Underwriting Agreement and the Issuer Escrow Agreement and
to the U.S. Underwriters in accordance with the U.S. Underwriting
Agreement and the Issuer Escrow Agreement, will be validly issued, fully
paid and non-assessable. The certificates for the Shares and the ADRs
that are in certificated form are in valid form. The holders of
outstanding shares of capital stock of the Company are not entitled to
any preemptive or other rights to subscribe for the Securities except
for such rights that have been effectively waived. Except as disclosed
in the Prospectuses, no options, warrants or other rights to purchase,
agreements or other
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<PAGE> 6
obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding. The Securities being sold by
the Company are freely transferable by the Company to or for the account
of the several Underwriters, their designees and the initial purchasers
thereof. Except as set forth in the Prospectuses, there are no
restrictions on subsequent transfers of the Securities under the laws of
Singapore and of the United States.
(g) The capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectuses. The
Articles of Association described in the Prospectuses under the heading
"Description of Ordinary Shares" are in full force and effect.
(h) Each of this International Underwriting Agreement, the U.S.
Underwriting Agreement and the Deposit Agreement has been duly
authorized, executed and delivered by the Company. The Issuer Escrow
Agreement has been duly authorized by the Company and, on or prior to
the Closing Date, will be duly executed and delivered by the Company.
(i) There is no franchise, contract or other document of a
character required to be described in the Registration Statement, ADR
Registration Statement or Prospectuses, or to be filed as an exhibit
thereto, which is not described or filed as required; and the
description of each such contract, franchise or document in the
Prospectuses is a fair description thereof in all material respects; and
each such franchise, contract or other document to which the Company is
a party, assuming due authorization, execution and delivery thereof by
all parties thereto, is enforceable against the Company in accordance
with its terms and is in full force and effect, and to the Company's
knowledge, is a legal, valid and binding obligation of the other parties
thereto. The statements in the Prospectuses under the heading
"Taxation", fairly summarize the matters therein described.
(j) Upon issuance by the Depositary of the ADRs evidencing the
ADSs against deposit in accordance with the provisions of the Deposit
Agreement of the underlying Ordinary Shares being sold by the Company
under the Underwriting Agreements, such ADSs will be duly and validly
issued and persons in whose names such ADSs are duly registered will be
entitled to the rights specified in the ADSs and in the Deposit
Agreement. Assuming that an Underwriter acquires its interest in such
ADSs without notice of an adverse claim (within the meaning of Section
8-105 of the UCC), such Underwriter that has purchased such ADSs
delivered to The Depository Trust Company by making payment therefor as
provided herein, and that has had such ADSs credited to the securities
account or accounts of such Underwriter maintained with The Depository
Trust Company or other securities intermediary will have acquired a
security entitlement (within the meaning of Section 8-102(a)(17) of the
New York Uniform Commercial Code (the "UCC")) to such ADSs purchased by
such Underwriter, and no action based on any such adverse claim (within
the meaning of Section 8-102(a)(1) of the UCC) may be asserted against
such Underwriter with respect to such ADSs.
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<PAGE> 7
(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 being sold by the Company
under the Underwriting Agreements in the manner contemplated by the
Underwriting Agreements, (C) the deposit with the Depositary of the
underlying Ordinary Shares being sold by the Company under the
Underwriting Agreements against issuance of ADRs evidencing the ADSs,
(D) the sale and delivery of the Ordinary Shares and the ADSs by the
Company to the Underwriters in accordance with the Underwriting
Agreements, or (E) except as disclosed in the Prospectuses under the
heading "Taxation--Singapore Taxation", the resale and delivery of such
Ordinary Shares and ADSs by the Underwriters in the manner contemplated
in the Prospectuses.
(l) Except as described in the Prospectuses, all dividends and
other distributions declared and payable on the Ordinary Shares may
under current Singapore law and regulations be paid to the Depositary
and to the holders of Securities, as the case may be, in Singapore
dollars and may be converted into foreign currency that may be
transferred out of Singapore in accordance with the Deposit Agreement.
(m) No consent, approval (including exchange control approval),
authorization, filing with or order of any court or governmental or
regulatory agency or body is required under Singapore or U.S. federal
law or the laws of any state or political subdivision thereof in
connection with the consummation by the Company of the transactions
contemplated in this U.S. Underwriting Agreement, the International
Underwriting Agreement, the Deposit Agreement and the Issuer Escrow
Agreement, except (A) such as have been obtained under the Act, the
Exchange Act, the Companies Act, Chapter 50 of Singapore, (B) such as
may be required under the blue sky or similar laws of any jurisdiction
in connection with the purchase and distribution of the Securities by
the Underwriters in the manner contemplated in the Underwriting
Agreements and the Prospectuses and (C) such as may be required pursuant
to the National Association of Securities Dealers, Inc. rules, The
Nasdaq Stock Market, Inc. rules, the letter from the SGX-ST dated
September 15, 1999 granting approval in principle for the listing and
quotation of the entire issued share capital of the Company on the Main
Board of the SGX-ST, or the letter from the SGX-ST dated March 29, 2000
regarding the listing of the new Shares, which such approvals have been
obtained.
(n) None of the issue and sale of the Securities, the
consummation of any other of the transactions contemplated in this U.S.
Underwriting Agreement, the International Underwriting Agreement, the
Deposit Agreement or the Issuer Escrow Agreement, or the fulfillment of
the terms hereof or thereof will conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Subsidiaries pursuant
to, (i) the Memorandum and Articles of Association of the Company or the
constituent documents of any of the Subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement, permit, license, franchise or other agreement,
obligation, condition, covenant or instrument to which the Company or
any of the
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<PAGE> 8
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.
(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
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<PAGE> 9
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.
(u) KPMG ("KPMG"), who have certified certain financial
statements of the Company and the Subsidiaries and delivered their
report with respect to the audited consolidated financial statements and
schedules included in the Registration Statement and the Prospectuses,
are independent public accountants with respect to the Company within
the meaning of the Act and the applicable published rules and
regulations thereunder.
(v) The Company has not taken, directly or indirectly, any
action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute under the Exchange Act
or otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities, provided, however, that this provision shall not apply to
any trading or stabilization activities conducted by the Underwriters.
(w) Each of the Company and the Subsidiaries possesses all
licenses, permits, certificates and other authorizations issued by the
appropriate Singapore, U.S., foreign, federal, state or local regulatory
authorities necessary to conduct its business as currently conducted,
except in any case in which the failure so to possess any such license,
permit, certificate or other authorization would not, individually or in
the aggregate, have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and the Subsidiaries, taken as a whole. Neither the Company
nor any of the Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such license, permit,
certificate or authorization which, singly or in the aggregate, if the
subject of an unfavorable decision ruling or findings, would have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in the
Prospectuses (exclusive of any supplement thereto).
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(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).
(aa) None of the Company's Subsidiaries is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on its capital stock, from repaying to the
Company any loans or advances to it from the Company or from
transferring any of its property or assets to the Company or the other
Subsidiary, except for certain restrictions as set forth in the Joint
Venture Agreement dated July 4, 1997 by and among the Company, Agilent
Technologies Europe BV and EDB Investments Pte Ltd (as amended) or as
described in or contemplated in the Prospectuses.
(bb) The Company and the Subsidiaries own, possess, license or
have other rights to use, on reasonable terms, all patents, patent
applications, trademarks, service marks, trade and service 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
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<PAGE> 11
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 has addressed the Year 2000
Problem with respect to the material operations of the Company and that
the Year 2000 Problem will not have a material adverse effect upon the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole.
(dd) The Company has filed all Singapore, U.S., foreign,
federal, state and local tax returns that are required to be filed or
has requested extensions thereof, except in any case in which the
failure so to file would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto) and has paid all taxes required to
be paid by it and any other assessment, fine or penalty levied against
it, to the extent that any of the foregoing is due and payable, except
for any such assessment, fine or penalty that is currently being
contested in good faith or as would not have a material adverse effect
on the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and the Subsidiaries, taken as a whole,
whether or not arising from
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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.
(gg) The Company and the Subsidiaries are (i) in compliance with
any and all Singapore laws and regulations relating to the protection of
human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws")
applicable to conduct their respective businesses, (ii) have received
and are in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) have not received notice of any actual
or potential liability for the investigation or remediation of any
disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals, or liability would not, individually or in the
aggregate, have a material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and the Subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
the Prospectuses (exclusive of any supplement thereto).
(hh) Each of the Company and the Subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of 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
12
<PAGE> 13
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.
(ii) The Subsidiaries are the only significant subsidiaries of
the Company as defined by Rule 1.02 of Regulation S-X.
Any certificate signed by any officer of the Company or any of
the Subsidiaries, in his or her capacity as an officer of the Company or
any of the Subsidiaries, and delivered to you or counsel for the
International Underwriters in connection with this International
Underwriting Agreement shall be deemed to be a representation and
warranty by the Company to each International Underwriter as to the
matters covered thereby.
(II) Each Selling Shareholder (other than STS with respect to
paragraphs (d) and (f) to the extent they relate to the Custody Agreement),
severally and not jointly, represents and warrants to, and agrees with, each
International Underwriter and the Company as follows:
(a) Such Selling Shareholder is the lawful owner of the Ordinary
Shares to be sold by such Selling Shareholder pursuant to this
Underwriting Agreement free and clear of all liens, encumbrances,
equities and claims whatsoever.
(b) Assuming that (i) Ordinary Shares to be purchased by any
Underwriter or to be delivered to the Depositary have been credited to
the Escrow Account (as defined in the Selling Shareholder Escrow
Agreement) in accordance with the provisions of the Selling Shareholder
Escrow Agreement and (ii) a certificate substantially in the form of
Annex A to the Selling Shareholder Escrow Agreement has been delivered
by a Selling Shareholder in accordance with the Selling Shareholder
Escrow Agreement, such Underwriter and the Depositary, as the case may
be, will own such Ordinary Shares free and clear of all liens,
encumbrances, equities and claims whatsoever.
(c) In the case of an Underwriter entitled to receive ADRs
evidencing ADSs, upon issuance by the Depositary of ADRs evidencing the
ADSs against deposit in accordance with the provisions of the Deposit
Agreement of the underlying Ordinary Shares being sold by such Selling
Shareholder under the Underwriting Agreements, such ADSs will be duly
and validly issued and persons in whose names such ADSs are duly
registered will be entitled to the rights specified in the ADSs and in
the Deposit Agreement. Assuming that an Underwriter acquires its
interest in such ADSs without notice of an adverse claim (within the
meaning of Section 8-105 of the UCC), such Underwriter that has
purchased such ADSs delivered to The Depository Trust Company by making
payment therefor as provided herein, and that has had such ADSs credited
to the securities account or accounts of such Underwriter maintained
with The Depository Trust Company or such other securities intermediary
will have acquired a security entitlement (within the meaning of Section
8-102(a)(17) of the UCC) to such ADSs
13
<PAGE> 14
purchased by such Underwriter, and no action based on any such adverse
claim (within the meaning of Section 8-102(a)(1) of the UCC) may be
asserted against such Underwriter with respect to such ADSs.
(d) Such Selling Shareholder's Ordinary Shares have been placed
in custody, for delivery pursuant to the terms of this Underwriting
Agreement, under a Custody Agreement and Power of Attorney duly
authorized (if applicable), executed and delivered by such Selling
Shareholder, in the form heretofore furnished to you (the "Custody
Agreement") with Salomon Smith Barney Inc. as the Custodian (the
"Custodian"); the Ordinary Shares so held in custody for each Selling
Shareholder are subject to the interests under this Underwriting
Agreement of the Underwriters; the arrangements for custody and delivery
of such Ordinary Shares made by such Selling Shareholder under this
Underwriting Agreement and under the Custody Agreement and the Selling
Shareholder Escrow Agreement are not subject to termination by any acts
of such Selling Shareholder, or by operation of law, whether by the
insolvency of such Selling Shareholder or the occurrence of any other
event; and if any such insolvency or any other such event shall occur
before the delivery of the Securities under this Underwriting Agreement,
subject to applicable Singapore law as to STS, Ordinary Shares will be
delivered by the Custodian and Escrow Agent in accordance with the terms
and conditions of this Underwriting Agreement, the Custody Agreement and
the Selling Shareholder Escrow Agreement as if such insolvency or other
event had not occurred, regardless of whether or not the Custodian and
Escrow Agent shall have received notice of such insolvency or other
event.
(e) Each of this International Underwriting Agreement and the
U.S. Underwriting Agreement has been duly authorized, executed and
delivered by such Selling Shareholder. The respective Selling
Shareholder Escrow Agreement has been duly authorized by the Selling
Shareholder and, on or prior to the Closing Date, will be duly executed
and delivered by the Selling Shareholder. No consent, approval
(including exchange control approval), authorization, filing with or
order of any court or governmental agency or body is required under
Singapore or U.S. federal law or the laws of any state or political
subdivision thereof for the consummation by such Selling Shareholder of
the transactions contemplated in this Underwriting Agreement, except
such as may have been obtained under the Act, the Exchange Act, the
Companies Act, Chapter 50 of Singapore, such as may be required under
the blue sky laws of any jurisdiction and the securities laws of any
jurisdiction outside the United States in connection with the purchase
and distribution of the Securities by the Underwriters in the manner
contemplated in the Underwriting Agreements and the Prospectuses and
such as may be required pursuant to the National Association of
Securities Dealers, Inc. rules or The Nasdaq Stock Market, Inc. rules,
which such approvals have been obtained.
(f) None of the execution and delivery of this Underwriting
Agreement, the Custody Agreement and the Selling Shareholder Escrow
Agreement, the deposit of the Underwritten Securities being sold by such
Selling Shareholder with the Depositary in accordance with the terms of
the Deposit Agreement, the Custody Agreement and the Selling Shareholder
Escrow Agreement, the sale of the Securities being sold by the Selling
Shareholder, the consummation of any other of the transactions
contemplated in
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<PAGE> 15
this Underwriting Agreement by such Selling Shareholder or the
fulfillment of the terms hereof by such Selling Shareholder will
conflict with, result in a breach or violation of, or constitute a
default under (i) the charter or by-laws of such Selling Shareholder,
(ii) the terms of any indenture or other agreement or instrument to
which such Selling Shareholder or any of its subsidiaries is a party or
bound, or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to such Selling Shareholder or any of its subsidiaries
of any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over such Selling Shareholder or any
of its subsidiaries except, with respect to clause (ii) or (iii) above,
such as would not individually or in the aggregate, have a material
adverse effect on the performance of this Underwriting Agreement or the
consummation of any of the transactions contemplated herein.
(g) No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or
on behalf of the Underwriters to the Singapore government or any
political subdivision or taxing authority thereof (in the case of STS)
or the government in which the Selling Shareholder is domiciled or any
political subdivision or taxing authority thereof (in the case of other
Selling Shareholders) in connection with (A) the issuance of the ADSs
being sold by such Selling Shareholder under Underwriting Agreements in
the manner contemplated by the Underwriting Agreements, (B) the deposit
with the Depositary of the Underwritten Securities being sold by such
Selling Shareholder under the Underwriting Agreements against issuance
of ADRs evidencing the ADSs, (C) the sale and delivery of the Ordinary
Shares and the ADSs being sold by the Selling Shareholder to the
Underwriters in accordance with the Underwriting Agreements, or (D)
except as disclosed in the Prospectuses under the heading
"Taxation--Singapore Taxation", the resale and delivery by the
Underwriters of the Ordinary Shares or the ADSs being sold by such
Selling Shareholder to the Underwriters in the manner contemplated in
the Prospectuses.
(h) Such Selling Shareholder has not taken, directly or
indirectly, any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute under
the Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Securities, provided, however, that this provision shall not apply
to any trading or stabilization activities conducted by the
Underwriters.
(i) The sale of the Securities by such Selling Shareholder
pursuant hereto is not prompted by any information concerning the
Company or any of its subsidiaries which is not set forth in the
Prospectuses or any supplement thereto.
(j) In respect of any statements in or omissions from the
Registration Statement and the ADR Registration Statement or the
Prospectuses or any supplements thereto made in reliance upon and in
conformity with information furnished in writing to the Company by such
Selling Shareholder specifically for use in connection with the
preparation thereof, such Selling Shareholder hereby makes the same
representations and warranties to each Underwriter and the Company as
the Company makes to such Underwriter under paragraph (I)(b) of this
Section. The Company and each Underwriter
15
<PAGE> 16
acknowledge that the information set forth under the heading "Principal
and Selling Shareholders" constitutes the only information so furnished.
Any certificate signed by any officer of any Selling Shareholder
and delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a
representation and warranty by such Selling Shareholder, as to matters
covered thereby, to each International Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this International
Underwriting Agreement, the Company and each Selling Shareholder agrees,
severally and not jointly, to sell to each International Underwriter,
and each International Underwriter agrees, severally and not jointly, to
purchase from the Company and the Selling Shareholders, at a purchase
price of US$65.00 per ADS and S$11.20 per Ordinary Share, the amount of
International Underwritten Shares set forth opposite such International
Underwriter's name in Schedule I to this International Underwriting
Agreement.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth in this International
Underwriting Agreement, the Company and STS hereby grant an option to
the several International Underwriters to purchase, severally and not
jointly, up to 4,680,000 and 3,426,000, respectively, International
Option Securities at the same purchase price per ADS and per Ordinary
Share as the International Underwriters shall pay for the International
Underwritten Securities. Said option may be exercised to cover
overallotments in the sale of the International Underwritten Securities
by the International Underwriters. Said option may be exercised
proportionally from the Company and STS in whole or in part at any time
(but not more than once) on or before the 30th day after the date of the
Prospectuses upon written or telegraphic notice by the International
Representatives to the Company and STS setting forth the number of
shares of the International Option Securities as to which the several
International Underwriters are exercising the option and the settlement
date. The number of International Option Securities to be purchased by
each International Underwriter shall be the same percentage of the total
number of shares of the International Option Securities to be purchased
by the several International Underwriters as such International
Underwriter is purchasing of the International Underwritten Securities,
subject to such adjustments as you in your absolute discretion shall
make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the International
Underwritten Securities and the International Option Securities (if the option
provided for in Section 2(b) hereof shall have been exercised on or before the
third Business Day) shall be made at 9:00 AM, New York City time, on May 9, 2000
or such later date not later than five Business Days after the foregoing date as
the International Representatives shall designate, which date and time may be
postponed by agreement among the International Representatives, the Selling
Shareholders and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the International Securities being herein
called in this International
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<PAGE> 17
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 and the Selling Shareholders to or upon the order of the Company and the
Selling Shareholders by wire transfer payable in same day funds to the accounts
specified by the Company and the Selling Shareholders. Delivery of the ADRs
representing International Underwritten Securities and the International Option
Securities shall be made through the facilities of The Depository Trust Company
unless the International Representatives shall otherwise instruct at least one
Business Day in advance of the Closing Date. ADRs representing the International
Securities and any International Shares not delivered to the Depositary or its
nominee pursuant to the Deposit Agreement shall be registered in such names and
in such denominations as 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
that the settlement date for any International Option Securities occurring after
the Closing Date, shall occur simultaneously with the settlement date for any
U.S. Option Securities occurring after the Closing Date under the U.S.
Underwriting Agreement.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Company and STS will deliver
(at their expense) to the U.S. Representatives, c/o Salomon Smith Barney Inc. at
388 Greenwich Street, New York, New York 10013, on the date specified by the
International Representatives (which shall be within three Business Days after
exercise of said option), ADRs representing the International Option Securities
and any International Option Shares not delivered to the Depositary or its
nominee pursuant to the Deposit Agreement in such names and denominations as the
International Representatives shall have requested against payment by the
several International Underwriters through the International Representatives of
the purchase price thereof to or upon the order of the Company and STS
respectively, by wire transfer of U.S. dollars and payable in same day funds to
the accounts specified by the Company and STS, respectively. If settlement for
the International Option Securities occurs after the Closing Date, the Company
and STS will deliver to the International Representatives on the settlement date
for the International Option Securities, and the obligation of the International
Underwriters to purchase the International Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
International Underwriters propose to offer the International Securities for
sale to the public as set forth in the Prospectuses.
5. Agreements. (I) The Company agrees with the several International
Underwriters that:
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<PAGE> 18
(a) The Company will use its best efforts to cause the
Registration Statement and the ADR Registration Statement, if not
effective at the Execution Time, and any amendment thereof, to become
effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement or
the ADR Registration Statement or supplement to the U.S. Prospectus or
any Rule 462(b) Registration Statement unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject
to the foregoing sentence, if the Registration Statement or the ADR
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the U.S. Prospectus is otherwise required under Rule
424(b), the Company will cause the U.S. Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to
the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the International
Representatives of such timely filing. The Company will promptly advise
the International Representatives (1) when the Registration Statement
and the ADR Registration Statement, if not effective at the Execution
Time, shall have become effective, (2) when the U.S. Prospectus, and any
supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement or ADR Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement or the ADR
Registration Statement shall have been filed or become effective, (4) of
any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement or ADR
Registration Statement, or for any supplement to the U.S. Prospectus or
for any additional information, (5) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or the ADR Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result
of which the U.S. Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or the ADR Registration
Statement or supplement the U.S. Prospectus to comply with the Act or
the rules thereunder, the Company promptly will (1) notify the
International Representatives of any such event; (2) prepare and file
with the Commission, subject to the second sentence of paragraph (i)(a)
of this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance; and (3) supply any
supplemental U.S. Prospectus to you in such quantities as you may
reasonably request.
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<PAGE> 19
(c) As soon as practicable, the Company will timely file such
reports pursuant to the Exchange Act as are necessary in order to make
generally available to its security holders and to the International
Representatives an earnings statement or statements of the Company and
the Subsidiaries which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
(d) The Company will furnish to the International
Representatives and counsel for the International Underwriters, without
charge, signed copies of the Registration Statement and the ADR
Registration Statement (including exhibits thereto) and to each other
International Underwriter a copy of the Registration Statement and the
ADR Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an International Underwriter or dealer may
be required by the Act, as many copies of each International Preliminary
Offering Memorandum and International Offering Memorandum and any
supplement thereto as the International Representatives may reasonably
request.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the International Representatives may designate and
will maintain such qualifications in effect so long as required for the
distribution of the International Securities, provided, however, that in
no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) Except pursuant to the Underwriting Agreements, the Company
will not, without the prior written consent of Salomon Smith Barney
Inc., offer, sell, contract to sell, pledge, or otherwise dispose of,
(or enter into any transaction which is designed to, or might reasonably
be expected to, result in the disposition (whether by actual disposition
or effective economic disposition due to cash settlement or otherwise)
by the Company) directly or indirectly, including the filing (or
participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any Ordinary Shares or ADSs
or any securities convertible into, or exercisable, or exchangeable for,
Ordinary Shares or ADSs; or publicly announce an intention to effect any
such transaction, for a period of 120 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> 20
(h) Each of the Company and the Selling Shareholders (in
proportion to the number of Securities being offered by each of them,
including any Option Securities which the Underwriters shall have
elected to purchase), agrees, severally and not jointly, to pay the
costs and expenses relating to the following matters: (i) the fees and
expenses of its counsel (including local counsel) and accountants in
connection with the issue of the Securities, (ii) the preparation,
printing or reproduction and filing with the Commission of the
Registration Statement and the ADR Registration Statement (including
financial statements and exhibits thereto), each Preliminary Prospectus,
each Prospectus, and each amendment or supplement to any of them and
mailing and delivering (including postage, air freight charges and
charges for counting and packing) copies thereof to the initial
purchasers and dealers; (iii) the deposit of the underlying Ordinary
Shares under the Deposit Agreement, the issuance thereunder of ADSs
representing such deposited Ordinary Shares, the issuance of ADRs
evidencing such ADSs and the fees of the Depositary; (iv) all expenses
relating to the road show for the offering of the Securities, including
the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Securities; (v) the preparation, printing,
authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with the
original issuance and sale of the Securities; (vi) the registration of
the Securities under the Exchange Act and the listing of the Ordinary
Shares and the ADSs on the SGX-ST and The Nasdaq National Market, Inc.,
respectively (such SGX-ST listing fees to be paid only by the Company,
however); (vii) any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD") (including filing
fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (viii) the fees and expenses of
the Authorized Agent (as defined in Section 15 hereof); (ix) the cost
and charges of any transfer agent or registrar; and (x) all other costs
and expenses incident to the performance by each of the Company and the
Selling Shareholders of its obligations under the Underwriting
Agreements.
(i) Each International Underwriter agrees that (i) it is not
purchasing any of the International Securities for the account of any
United States or Canadian Person, (ii) it has not offered or sold, and
will not offer or sell, directly or indirectly, any of the International
Securities or distribute any International Offering Memorandum to any
person in the United States or Canada, or to any United States or
Canadian Person, and (iii) any dealer to whom it may sell any of the
International Securities will represent that it is not purchasing for
the account of any United States or Canadian Person and agree that it
will not offer or resell, directly or indirectly, any of the
International Securities in the United States or Canada, or to any
United States or Canadian Person or to any other dealer who does not so
represent and agree; provided, however, that the foregoing shall not
restrict (A) purchases and sales among the International Underwriters
and the U.S. Underwriters pursuant to the Agreement Among U.S.
Underwriters and International Underwriters, (B) stabilization
transactions contemplated under the Agreement Among U.S. Underwriters
and International Underwriters, conducted through Salomon Smith Barney
(or through the U.S. Representatives and International Representatives)
as part of the distribution of the Securities, and (C) sales to or
through (or distributions of International Offering Memoranda or
International Preliminary Offering Memoranda to) persons not United
States or Canadian Persons who are investment advisors, or who
20
<PAGE> 21
otherwise exercise investment discretion, and who are purchasing for the
account of any United States or Canadian Person.
(II) The agreements of the International Underwriters set forth
in paragraph (I)(i) of this Section 5 shall terminate upon the earlier of the
following events:
(a) a mutual agreement of the U.S. Representatives and the
International Representatives to terminate the selling restrictions set
forth in paragraph (I)(i) of this Section 5, paragraph (I)(i) of Section
5 of the U.S. Underwriting Agreement and Section 2(f) of the Agreement
Among U.S. Underwriters and International Underwriters; or
(b) the expiration of a period of 30 days after the Closing
Date, unless (i) the International Representatives shall have given
notice to the Company and the U.S. Representatives that the distribution
of the International Securities by the International Underwriters has
not yet been completed, or (ii) the U.S. Representatives shall have
given notice to the Company and the International Representatives that
the distribution of the U.S. Securities by the U.S. Underwriters has not
yet been completed. If such notice by the International Representatives
or the U.S. Representatives is given, the agreements set forth in such
paragraph (I)(i) shall survive until the earlier of (1) the event
referred to in clause (a) of this subsection (II) or (2) the expiration
of an additional period of 30 days from the date of any such notice.
(III) Each International Underwriter severally represents and
agrees that:
(a) it has not offered or sold and, prior to the expiry of six
months from the closing of the offering of the International Securities,
will not offer or sell by means of any document any International
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (whether as principal or agent) for the purpose
of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities
Regulations 1995;
(b) it has complied and will comply with all applicable
provisions of the Financial Services 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
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<PAGE> 22
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 with the conditions, specified in
Section 106D of the Companies Act, Chapter 50 of Singapore or (C)
otherwise pursuant to, and in accordance with the conditions of, any
other provision of the Companies Act, Chapter 50 of Singapore (any of
the foregoing a "Singapore Institutional Investor"); it being understood
that this clause (i) shall not apply to Overseas Union Bank Limited and
Vickers Ballas & Company Pte Ltd (except that Overseas Union Bank
Limited and Vickers Ballas & Company Pte Ltd shall not distribute the
International Offering Memorandum, in preliminary or final form, to any
person in Singapore other than a Singapore Institutional Investor).
(IV) Each Selling Shareholder agrees with the several
Underwriters and the Company that:
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<PAGE> 23
(a) Except pursuant to the Underwriting Agreements, STS will
not, without the prior written consent of Salomon Smith Barney Inc.,
offer, sell, contract to sell, pledge or otherwise dispose of, (or enter
into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by
STS) directly or indirectly, or file (or participate in the filing of) a
registration statement with the Commission in respect of, or establish
or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act
with respect to, any Ordinary Shares or ADSs or any securities
convertible into or exercisable or exchangeable for Ordinary Shares or
ADSs, or publicly announce an intention to effect any such transaction,
for a period of 120 days after the date of this International
Underwriting Agreement, other than Ordinary Shares or ADSs disposed of
as bona fide gifts approved by Salomon Smith Barney Inc. Except pursuant
to the Underwriting Agreements, each Selling Shareholder (other than
STS) will not, without the prior written consent of Salomon Smith Barney
Inc., offer, sell, contract to sell, pledge or otherwise dispose of, (or
enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by
such Selling Shareholder) directly or indirectly, or file (or
participate in the filing of) a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act with respect to, any Ordinary
Shares or ADSs or any securities convertible into or exercisable or
exchangeable for Ordinary Shares or ADSs, or publicly announce an
intention to effect any such transaction, for a period of 90 days after
the date of this International Underwriting Agreement, other than
Ordinary Shares or ADSs (i) disposed of as bona fide gifts approved by
Salomon Smith Barney Inc. or (ii) used by such Selling Shareholder in
the acquisition of the equity capital or substantially all of the assets
of any other person or entity; provided that such other person or entity
agrees to enter into a lock-up agreement with the International
Underwriters that is substantially similar to this letter for the
remaining portion of such 90-day period and such acquisition is approved
by Salomon Smith Barney Inc.
(b) Such Selling Shareholder will not take any action designed
to or which has constituted or which might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Ordinary Shares or the ADSs.
(c) Such Selling Shareholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as
delivery of a prospectus relating to the Securities by an underwriter or
dealer may be required under the Act, of (i) any material change in the
Company's condition (financial or otherwise), prospects, earnings,
business or properties which comes to the attention of such Selling
Shareholder, (ii) any change in information in the Registration
Statement, the ADR Registration Statement or the Prospectuses relating
to such Selling Shareholder or (iii) any new material information
relating to the Company or relating to any matter stated in the
Prospectuses which comes to the attention of such Selling Shareholder.
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<PAGE> 24
(d) Such Selling Shareholder will comply with the agreement
contained in Section 5(I)(h).
6. Conditions to the Obligations of the International Underwriters. The
obligations of the International Underwriters to purchase the International
Underwritten Securities and the International Option Securities, as the case may
be, shall be subject to the accuracy of the representations and warranties on
the part of the Company and each of the Selling Shareholders contained in this
International Underwriting Agreement as of the Execution Time, the Closing Date
and any settlement date pursuant to Section 3 hereof, to the accuracy of the
statements of the Company and each of the Selling Shareholders made in any
certificates pursuant to the provisions hereof, to the performance by the
Company and each of the Selling Shareholders of their respective obligations
under this International Underwriting Agreement and to the following additional
conditions:
(a) If the Registration Statement and the ADR Registration
Statement have not become effective prior to the Execution Time, unless
the International Representatives and the U.S. Representatives agree in
writing to a later time, the Registration Statement and the ADR
Registration Statement will become effective not later than (i) 6:00 PM
New York City time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 PM New York
City time on such date or (ii) 9:30 AM New York City time on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the U.S. Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the U.S. Prospectus, and
any such supplement, will be filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement or the ADR Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) The Company and STS shall have requested and caused Allen &
Gledhill, Singapore counsel for the Company and STS, to have furnished
to the Representatives their opinion, to the effect set forth in the
U.S. Underwriting Agreement under Section 6(b).
(c) The Company and STS shall have furnished to the
Representatives the opinion of Latham & Watkins, United States counsel
for the Company and STS, to the effect set forth in the U.S.
Underwriting Agreement under Section 6(c).
(d) Each of the Selling Shareholders (other than STS) shall have
requested and caused its counsel, which counsel shall be reasonably
satisfactory to counsel for the Underwriters, to have furnished to the
Representatives their opinion dated the Closing Date and addressed to
the Representatives to the effect 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
the jurisdiction of incorporation of such Selling Shareholder, the State
of New York or the Federal laws of the United States, to the extent they
deem proper and specified in such opinion, upon the opinion of other
24
<PAGE> 25
counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the International Underwriters, and (B) as
to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Selling Shareholders and public officials.
(e) 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(e).
(f) 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 Representatives may reasonably
require, and the Company and each Selling Shareholder shall have
furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the ADR
Registration Statement, the Prospectuses, any supplements to the
Prospectuses and the Underwriting Agreements and that:
(i) the representations and warranties of the Company in
the Underwriting Agreements are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or the ADR Registration Statement has
been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectuses (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or otherwise), earnings, business or
properties of the Company and the Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in
the Prospectuses (exclusive of any supplement thereto).
(h) Each Selling Shareholder shall have furnished to the
Representatives a certificate, signed by the Chairman of the Board or
the President and the principal financial or accounting officer of such
Selling Shareholder, dated the Closing Date, to the
25
<PAGE> 26
effect that (1) in the case of STS, the signers of such certificate have
carefully examined the Registration Statement, the ADR Registration
Statement, the Prospectuses, any supplement to either of the
Prospectuses and this International Underwriting Agreement and the U.S.
Underwriting Agreement and (2) in the case of each Selling Shareholder,
the representations and warranties of such Selling Shareholder in this
International Underwriting Agreement and the U.S. Underwriting Agreement
are true and correct in all material respects on and as of the Closing
Date to the same effect as if made on the Closing Date.
(i) The Company shall have requested and caused KPMG to have
furnished to the Representatives at the Execution Time and at the
Closing Date a letter or letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to
the Representatives, to the effect set forth in Section 6(i) of the U.S.
Underwriting Agreement.
(j) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof), and the Prospectuses (exclusive of
any supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph (i)
of this Section 6 or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and the
Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Prospectuses (inclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof), the ADR
Registration Statement and the Prospectuses (exclusive of any supplement
thereto).
(k) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A
hereto from each shareholder of the Company listed in Schedule III
hereto.
(l) The Deposit Agreement shall be in full force and effect, and
shall not have been amended except as approved by the Representatives.
(m) The Depositary shall have furnished or caused to be
furnished to the Representatives certificates satisfactory to the
Representatives evidencing the deposit with the Depositary or its
nominee of the Ordinary Shares in respect of which ADSs to be purchased
by the Underwriters on such Closing Date are to be issued, and the
execution, issuance, countersignature (if applicable) and delivery of
the ADRs evidencing such ADSs pursuant to the Deposit Agreement and such
other matters related thereto as the Representatives shall reasonably
request.
(n) The closing of the purchase of the U.S. Underwritten
Securities to be issued and sold pursuant to the U.S. Underwriting
Agreement shall occur substantially
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<PAGE> 27
concurrently (giving effect to the time difference between New York and
Singapore) with the closing of the purchase of the International
Underwritten Securities described herein.
(o) The Ordinary Shares shall have been listed and admitted and
authorized for trading on the SGX-ST, and the ADSs shall have been
included for quotation on The Nasdaq National Market, Inc., and
satisfactory evidence of all such actions shall have been provided to
the Representatives.
(p) Prior to the Closing Date, the Company and the Selling
Shareholders shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
International Underwriting Agreement and the U.S. Underwriting Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
International Underwriting Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this International Underwriting Agreement and all
obligations of the International Underwriters hereunder may be canceled at, or
at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company and each Selling Shareholder in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will be
delivered at the offices of Cleary, Gottlieb, Steen & Hamilton, counsel for the
Underwriters at 39th Floor, Bank of China Tower, One Garden Road, Central, Hong
Kong, on the Closing Date.
7. Commissions, Costs and Expenses. In consideration of the agreement by
the International Underwriters to subscribe for the International Underwritten
Shares and the International Option Shares (subject to the option for the
International Option Shares referred to in the preamble above being duly
exercised in accordance with Section 3 of this International Underwriting
Agreement), the Company and the Selling Shareholders (in proportion to the
number of securities offered by each of them), severally but not jointly, shall
pay to the International Underwriters on the Closing Date, or on the date on
which such Option Securities are purchased, as the case may be, a combined
management and underwriting commission of 1.06 per cent. and a selling
commission of 1.59 per cent. in respect of the International Underwritten Shares
or the International Option Shares, as the case may be. The amounts payable by
the Selling Shareholders to the International Underwriters pursuant to this
Section 7 shall be deducted from the amounts payable by the International
Underwriters to the Selling Shareholders pursuant to Section 2.
8. Reimbursement of Underwriters' Expenses. The Company and each Selling
Shareholder have agreed, severally but not jointly (in proportion to the number
of securities being offered by each of them, including any Option Securities
which the Underwriters shall have elected to purchase), to reimburse the
Underwriters through 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, up to an aggregate maximum of $500,000 for the Global Offering. The
amounts
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<PAGE> 28
payable by the Selling Shareholders to the International Underwriters
pursuant to this Section 8 shall be deducted from the amounts payable by
the International Underwriters to the Selling Shareholders pursuant to
Section 2. In addition, if the sale of the Securities provided for under
the Underwriting Agreements is not consummated because any condition to
the obligations of the U.S. Underwriters or the International
Underwriters set forth in Section 6 of the Underwriting Agreements is
not satisfied, because of any termination pursuant to Section 11 of the
Underwriting Agreements or because of any refusal, inability or failure
on the part of the Company or any Selling Shareholders to perform any
agreement under the Underwriting Agreements or comply with any provision
of the Underwriting Agreements other than by reason of a default by any
of the Underwriters, the Company and each Selling Shareholder will,
severally but not jointly (in proportion to the number of securities
being offered by each of them, including any Option Securities which the
Underwriters shall have elected to purchase), reimburse the Underwriters
through 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 for the Global Offering. If the Company (to the extent
permitted by applicable law) makes any payments to the Underwriters
under this Section 8 because of any Selling Shareholder's refusal,
inability or failure to satisfy any condition to the obligations of the
Underwriters set forth in Section 6, the Selling Shareholders shall each
reimburse the Company on demand for all amounts so paid, pro rata in
proportion to the percentage of Securities to be sold by them.
9. Indemnification and Contribution.
(a) The Company (to the extent permitted by applicable law) and
STS jointly and severally agree to indemnify and hold harmless each
International Underwriter, the directors, officers, employees and agents
of each International Underwriter and each person who controls any
International Underwriter within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under
the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement originally filed
or in any amendment thereof, or in the ADR Registration Statement as
originally filed or in any amendment thereof, or in any Preliminary
Prospectus or in either of the Prospectuses, or in any amendment thereof
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company and STS will not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of any International Underwriter through the
International Representatives specifically for inclusion therein.
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<PAGE> 29
This indemnity agreement will be in addition to any liability which the
Company or STS may otherwise have; provided further, that with respect
to any untrue statement or omission of material fact made in any
Preliminary Prospectus, the indemnity agreement contained in this
Section 9(a) shall not inure to the benefit of any International
Underwriter from whom the person describing any such loss, claim, damage
or liability purchased the Securities, or any person controlling such
International Underwriter, to the extent that any such loss, claim,
damage or liability of each International Underwriter (or any person
controlling such International Underwriter) occurs under the
circumstance where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (w) the Company
had previously furnished copies of the Prospectus to the
Representatives, (x) delivery of the Prospectus was required by the Act
to be made to such person, (y) the untrue statement or omission of a
material fact contained in the Preliminary Prospectus was corrected in
the Prospectus and (z) there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Securities to such
person, a copy of the Prospectus.
(b) Each International Underwriter severally and not jointly
agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration Statement, or
the ADR Registration Statement, and each person who controls the Company
within the meaning of either the Act or Exchange Act and STS, to the
same extent as the foregoing indemnity to each International
Underwriter, but only with reference to written information relating to
such International Underwriter furnished to the Company by or on behalf
of such International Underwriter through the International
Representatives specifically for inclusion in the documents referred to
in the foregoing indemnity. This indemnity agreement will be in addition
to any liability which any International Underwriter may otherwise have.
The Company and STS acknowledge that (A) the names of the Underwriters
contained in any Preliminary Prospectus or either of the Prospectuses
and their respective participation in the sale of the Securities as set
forth in the two charts under the heading "Underwriting" in any
Preliminary Prospectus or either of the Prospectuses, (B) the statements
set forth in the last paragraph on the front cover page of any
Preliminary Prospectus or either of the Prospectuses regarding delivery
of the Securities (and the ADSs representing such Securities) and (C)
the statements set forth in the seventh, ninth, thirteenth and fifteenth
paragraphs under the heading "Underwriting" in any Preliminary
Prospectus or either of the Prospectuses constitute the only information
furnished in writing by or on behalf of the several International
Underwriters for inclusion in any Preliminary Prospectus or either of
the Prospectuses.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel
29
<PAGE> 30
of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party
in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in, or
targets of any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall
not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after
notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. It is understood, however, that the
Company shall, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the fees and expenses of only one separate firm of attorneys (in
addition to any local counsel) at any time for all such Underwriters and
controlling persons, which firm shall be designated in writing by
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.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 9 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, the Company (to the extent
permitted by applicable law), STS and the International Underwriters
severally agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively
"Losses") to which the Company STS and one or more of the International
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company STS and by the
International Underwriters from the offering of the International
Securities; provided, however, that in no case shall any International
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the International Securities)
be responsible for any amount in excess of the underwriting discount or
commission applicable to the Securities purchased by such International
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<PAGE> 31
Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company (to the
extent permitted by applicable law), STS and the International
Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Company, of STS and of the International Underwriters in connection
with the statements or omissions which resulted in such Losses as well
as any other relevant equitable considerations. Benefits received by the
Company and by STS shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) received by each of them,
and benefits received by the International Underwriters shall be deemed
to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the International Offering
Memorandum. Relative fault shall be determined by reference to, among
other things, whether any alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information provided by the Company, by STS or by the International
Underwriters, the intent of the parties and their relative knowledge
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company, STS and the International
Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method
of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person who
controls an International Underwriter within the meaning of either the
Act or the Exchange Act and each director, officer, employee and agent
of an International Underwriter shall have the same rights to
contribution as such International Underwriter, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and the ADR Registration Statement and each
director of the Company shall have the same rights to contribution as
the Company, subject in each case to the applicable terms and conditions
of this paragraph (d).
(e) The liability of each Selling Shareholder under its
representations and warranties contained in Section 1 hereof (and of STS
under the indemnity and contribution agreements contained in this
Section 9) shall be limited to an amount equal to the offering price of
the International Securities sold by such Selling Shareholder to the
International Underwriters net of underwriting and selling commissions
paid by such Selling Shareholder under this Agreement. The Company and
the Selling Shareholders may agree, as among themselves and without
limiting the rights of the International Underwriters under this
International Underwriting Agreement, as to the respective amounts of
such liability for which they each shall be responsible.
10. Default by an Underwriter. If any one or more International
Underwriters shall fail to purchase and pay for any of the International
Securities agreed to be purchased by such International Underwriter or
International Underwriters under this International Underwriting Agreement and
such failure to purchase shall constitute a default in the performance of its or
their obligations under this Agreement, the remaining International Underwriters
shall be obligated severally to take up and pay for (in the respective
proportions
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<PAGE> 32
which the amount of International Securities set forth opposite their names in
Schedule I hereto bears to the aggregate amount of International Securities set
forth opposite the names of all the remaining International Underwriters) the
International Securities which the defaulting International Underwriter or
International Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of International Securities which
the defaulting International Underwriter or International Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule I hereto, the remaining International Underwriters shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the International Securities, and if such nondefaulting
International Underwriters do not purchase all the International Securities,
this Agreement will terminate without liability to any nondefaulting
International Underwriter, the Selling Shareholders or the Company. In the event
of a default by any International Underwriter as set forth in this Section 10,
the Closing Date shall be postponed for such period, not exceeding five Business
Days, as the International Representatives shall determine in order that the
required changes in the Registration Statement, the ADR Registration Statement
and the Prospectuses or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting International
Underwriter of its liability, if any, to the Company, the Selling Shareholders
and any nondefaulting International Underwriter for damages occasioned by its
default under this International Underwriting Agreement.
11. Termination. This International Underwriting Agreement shall be
subject to termination in the absolute discretion of the International
Representatives, by notice given to the Company prior to delivery of and payment
for the International Securities, if prior to such time (i) trading in the
Company's ADSs shall have been suspended by the Commission or the Nasdaq
National Market, Inc., trading in the Company's Ordinary Shares shall have been
suspended by the SGX-ST, trading in securities generally on the New York Stock
Exchange, The Nasdaq National Market, Inc. or the SGX-ST shall have been
suspended or limited or minimum prices shall have been established on such
exchange or The Nasdaq National Market, Inc., (ii) a banking moratorium shall
have been declared either by U.S. Federal, New York State or Singapore
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities involving the United States or Singapore, declaration by the United
States or Singapore of a national emergency or war or other calamity or crisis
the effect of which on financial markets is such as to make it, in the sole
judgment of the International Representatives, impracticable or inadvisable to
proceed with the offering or delivery of the prospectus as contemplated by the
International Offering Memorandum (exclusive of any supplement thereto).
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of each Selling Shareholder and of the International
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
International Underwriter, any Selling Shareholders or the Company or any of the
officers, directors or controlling persons referred to in Section 9 hereof, and
will survive delivery of and payment for the International Securities. The
provisions of Sections 8 and 9 hereof shall survive the termination or
cancellation of this International Underwriting Agreement.
13. Notices. All communications under this International Underwriting
Agreement will be in writing and effective only on receipt, and, if sent to the
International
32
<PAGE> 33
Representatives, will be mailed, delivered or telefaxed to the 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) 362-2909) and confirmed to it at 60
Woodlands Industrial Park D, Street 2, Singapore 738406, Attention: Legal
Department; or if sent to any Selling Shareholder, will be mailed, delivered or
telefaxed and confirmed to it at the address set forth in Schedule II hereto.
14. Successors. This International Underwriting Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors, employees, agents and controlling
persons referred to in Section 9 hereof, and no other person will have any right
or obligation under this International Underwriting Agreement.
15. Jurisdiction. Each of the Company and STS agrees that any suit,
action or proceeding against the Company brought by any International
Underwriter, by the directors, officers, employees and agents of any
International Underwriter or by any person who controls any International
Underwriter, arising out of or based upon this International Underwriting
Agreement or the transactions contemplated hereby may be instituted in any New
York Court; and waives any objection which it may now or hereafter have to the
laying of venue of any such proceeding, and irrevocably accepts and submits to
the non-exclusive jurisdiction of such courts in any suit, action or proceeding.
Each of the Company and STS has appointed Chartered Semiconductor Manufacturing,
Inc., at 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 International Underwriter, by the directors, officers, employees and
agents of any International Underwriter or by any person who controls any
International Underwriter and expressly accepts the non-exclusive jurisdiction
of any such court in respect of any such suit, action or proceeding. Each of the
Company and STS consents to process being served in any action or proceeding by
mailing a copy thereof by registered or certified mail to the Authorized Agent.
Each of the Company and STS hereby represents and warrants that the Authorized
Agent has accepted such appointment and has agreed to act as said agent for
service of process, and the Company agrees to take any and all action, including
the filing of any and all documents that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent shall be deemed, in every respect, effective service of process
upon the Company and STS. Notwithstanding the foregoing, any action arising out
of or based upon this Agreement may be instituted by any International
Underwriter, by the directors, officers, employees and agents of any
International Underwriter or by any person who controls any International
Underwriter, in any other court of competent jurisdiction, including those in
Singapore.
The provisions of this Section 15 shall survive any termination of the
International Underwriting Agreement, in whole or in part.
16. Applicable Law. This International Underwriting Agreement will be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
33
<PAGE> 34
17. Currency. Each reference in this International Underwriting
Agreement to U.S. dollars (the "relevant currency") is of the essence. To the
fullest extent permitted by law, the obligations of each of the Company and the
Selling Shareholders in respect of any amount due under this International
Underwriting Agreement will, notwithstanding any payment in any other currency
(whether pursuant to a judgment or otherwise), be discharged only to the extent
of the amount in the relevant currency that the party entitled to receive such
payment may, in accordance with its normal procedures, purchase with the sum
paid in such other currency (after any premium and costs of exchange) on the
Business Day immediately following the day on which such party receives such
payment. If the amount in the relevant currency that may be so purchased for any
reason falls short of the amount originally due, the Company or the Selling
Shareholder making such payment will pay such additional amounts, in the
relevant currency, as may be necessary to compensate for the shortfall. If,
alternatively, the amount in the relevant currency that may be so purchased for
any reason exceeds the amount originally due, the party entitled to receive such
original amount will return such excess amounts, in the relevant currency, to
the Company or the Selling Shareholders. Any obligation of the Company or the
Selling Shareholders not discharged by such payment will, to the fullest extent
permitted by applicable law, be due as a separate and independent obligation
and, until discharged as provided herein, will continue in full force and
effect.
18. Waiver of Immunity. To the extent that the Company or the Selling
Shareholders has or hereafter may acquire any immunity (sovereign or otherwise)
from any legal action, suit or proceeding, from jurisdiction of any court or
from set-off or any legal process (whether service or notice, attachment in aid
or otherwise) with respect to itself or any of its property, each of the Company
and each of the Selling Shareholders hereby irrevocably waives and agrees not to
plead or claim such immunity in respect of its obligations under this Agreement.
19. Counterparts. This International Underwriting Agreement may be
signed in one or more counterparts, each of which shall constitute an original,
and all of which together shall constitute one and the same agreement.
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.
34
<PAGE> 35
"Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in
The City of New York, New York and Singapore are authorized or obligated
by law, executive order or regulation to close.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the
Registration Statement and the ADR Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or becomes effective.
"Exchange Act" shall mean the United States Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Execution Time" shall mean the date and time that this
International Underwriting Agreement is executed and delivered by the
parties hereto.
"International Offering Memorandum" shall mean such form of
offering memorandum relating to the International Securities.
"International Preliminary Offering Memorandum" shall mean any
preliminary offering memorandum with respect to the offering of the
International Securities.
"International Representatives" shall mean the addressees of
this International Underwriting Agreement.
"International Securities" shall mean the International
Underwritten Securities and the International Option Securities.
"International Underwriters" shall mean the several Underwriters
named in Schedule I to the International Underwriting Agreement.
"International Underwriting Agreement" shall mean this agreement
relating to the sale of the International Securities by the Company and
the Selling Shareholders to the International Underwriters.
"New York Courts" shall mean the U.S. Federal or State courts
located in the State of New York, County of New York.
"Option Securities" shall mean the U.S. Option Securities and
the International Option Securities.
"Option Shares" shall mean the U.S. Option Shares and the
International Option Shares.
"Preliminary Prospectuses" and each "Preliminary Prospectus"
shall mean the U.S. Preliminary Prospectus and the International
Preliminary Offering Memorandum.
35
<PAGE> 36
"Prospectuses" and "each Prospectus" shall mean the U.S.
Prospectus and the International Offering Memorandum.
"RCB" shall mean the Singapore Registrar of Companies and
Businesses.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at
the Execution Time, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended or such Rule
462(b) Registration Statement, as the case may be. Such term shall
include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Representatives" shall mean the U.S. Representatives and the
International Representatives.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under
the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
"Securities" shall mean the U.S. Securities and the
International Securities.
"Selling Shareholders" shall mean the persons named on Schedule
II to the U.S. Underwriting Agreement and, for purposes only of
calculating expenses payable pursuant to Section 5(I)(h), Schedule II to
the International Underwriting Agreement.
"Shares" shall mean the U.S. Shares and the International
Shares.
"Statement" shall mean the Statement of Material Facts filed
with the RCB.
"STS" shall mean Singapore Technologies Semiconductors Pte Ltd.
"Subsidiary" shall mean each of Chartered Semiconductor
Manufacturing Inc. and Chartered Silicon Partners Pte Ltd.
"Underwriter" and "Underwriters" shall mean the U.S.
Underwriters and the International Underwriters.
"Underwritten Securities" shall mean the U.S. Underwritten
Securities and the International Underwritten Securities.
36
<PAGE> 37
"Underwritten Shares" shall mean the U.S. Underwritten Shares
and the International Underwritten Shares.
"United States or Canadian Person" shall mean any person who is
a national or resident of the United States or Canada, any corporation,
partnership, or other entity created or organized in or under the laws
of the United States or Canada or of any political subdivision thereof,
or any estate or trust the income of which is subject to United States
or Canadian Federal income taxation, regardless of its source (other
than any non-United States or non-Canadian branch of any United States
or Canadian Person), and shall include any United States or Canadian
branch of a person other than a United States or Canadian Person.
"U.S." or "United States" shall mean the United States of
America (including the states thereof and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction.
"U.S. Preliminary Prospectus" shall mean any preliminary
prospectus with respect to the offering of the U.S. Securities referred
to in paragraph 1(a) above and any preliminary prospectus with respect
to the offering of the U.S. Securities, as the case may be, included in
the Registration Statement at the Effective Date that omits Rule 430A
Information.
"U.S. Prospectus" shall mean the prospectus relating to the U.S.
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"U.S. Representatives" shall mean the addressees of the U.S.
Underwriting Agreement.
"U.S. Securities" shall mean the U.S. Underwritten Securities
and the U.S. Option Securities.
"U.S. Underwriters" shall mean the several Underwriters named in
Schedule I to the U.S. Underwriting Agreement.
"U.S. Underwriting Agreement" shall mean the U.S. Underwriting
Agreement dated the date hereof relating to the sale of the U.S.
Securities by the Company and the selling shareholders named therein to
the U.S. Underwriters.
37
<PAGE> 38
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, the Selling Shareholders and the several International Underwriters.
Very truly yours,
Chartered Semiconductor Manufacturing Ltd
By: /s/ CHIA SONG HWEE
------------------------------------------
Name: Chia Song Hwee
Title: Senior Vice President and Chief
Financial Officer
Singapore Technologies Semiconductors Pte Ltd
By: /s/ PREMOD PAUL THOMAS
---------------------------
Name: Premod Paul Thomas
Title: Director, Finance
By: /s/ GAN CHEE YEN
------------------------------------------
Name: Gan Chee Yen
Title: Group Financial Controller
Analog Devices, Inc.
By: /s/ CHIA SONG HWEE
------------------------------------------
Name: Chia Song Hwee
Title: Attorney-in-fact
Actel Corporation
By: /s/ CHIA SONG HWEE
------------------------------------------
Name: Chia Song Hwee
Title: Attorney-in-fact
38
<PAGE> 39
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers International Limited
By: /s/ SCOTT FERGUSON
--------------------------------
Name: Scott Ferguson
Title: Managing Director
For itself and the other several International
Representatives and International
Underwriters named in Schedule I to
the foregoing Agreement.
39
<PAGE> 40
ANNEX A
List of Subsidiaries
Chartered Semiconductor Manufacturing, Inc.
Chartered Silicon Partners Pte Ltd
<PAGE> 41
SCHEDULE I
<TABLE>
<CAPTION>
Number of
International Underwriter International Underwritten Shares
- ------------------------- ---------------------------------
<S> <C>
Salomon Brothers International Limited.............. 18,914,000
Credit Suisse First Boston (Singapore) Limited...... 16,212,000
Chase Manhattan International Limited............... 3,782,800
Overseas Union Bank Limited......................... 3,782,800
SG Securities (Singapore) Pte. Ltd.................. 3,782,800
Vickers Ballas & Company Pte Ltd.................... 3,782,800
Wit SoundView Corporation........................... 3,782,800
----------
Total............................................... 54,040,000
</TABLE>
<PAGE> 42
SCHEDULE II
<TABLE>
<CAPTION>
Number of
Selling Shareholders International Underwritten Shares
- -------------------- ---------------------------------
<S> <C>
Singapore Technologies Semiconductors Pte Ltd....... 15,740,000
51 Cuppage Road #09-01
Singapore 229469
Analog Devices, Inc................................. 4,500,000
Three Technology Way
Norwood, MA 02062
USA
Actel Corporation................................... 2,600,000
955 East Arques Avenue
Sunnyvale, CA 94086
USA
----------
Total............................................... 22,840,000
</TABLE>
<PAGE> 43
SCHEDULE III
List of Signatories to Letter Attached as Exhibit A
1. Singapore Technologies Pte Ltd
2. Alliance Semiconductor Corporation
<PAGE> 44
EXHIBIT A
Chartered Semiconductor Manufacturing Ltd
Public Offering of Ordinary Shares
May , 2000
Salomon Smith Barney Inc.
Salomon Brothers International Limited
Credit Suisse First Boston Corporation
Credit Suisse First Boston (Singapore) Limited
Chase Securities Inc.
Chase Manhattan International Limited
Overseas Union Bank Limited
SG Cowen Securities Corporation
SG Securities (Singapore) Pte. Ltd.
Vickers Ballas & Company Pte Ltd
Wit SoundView Corporation
As Representatives of the several U.S. Underwriters
and International Underwriters
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
U.S.A.
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
U.S. Underwriting Agreement and International Underwriting Agreement (the
"Underwriting Agreements"), between Chartered Semiconductor Manufacturing Ltd, a
corporation organized under the laws of Singapore (the "Company"), the Selling
Shareholders named therein (the "Selling Shareholders"), and you as
representatives of the group of U.S. and International Underwriters named
therein, relating to an underwritten public offering of ordinary shares (the
"Ordinary Shares") of the Company, directly or in the form of American
Depositary Shares ("ADSs").
In order to induce you and the other U.S. Underwriters and International
Underwriters to enter into the Underwriting Agreements, the undersigned will
not, without the prior consent of Salomon Smith Barney Inc., offer, sell,
contract to sell, pledge or otherwise dispose of (whether by actual disposition
or effective economic disposition due to cash settlement or otherwise), directly
or indirectly, or announce the offering of, any Ordinary Shares or ADSs or any
securities convertible into, or exercisable or exchangeable for, Ordinary Shares
or ADSs, for a period of 120 [90] days following the date of the Underwriting
Agreements, other than Ordinary Shares or ADSs [(i)] disposed of as bona fide
gifts approved by Salomon Smith
<PAGE> 45
Barney Inc. [or (ii) used by the undersigned in the acquisition of the equity
capital or substantially all of the assets of any other person or entity;
provided that such other person or entity agrees to enter into a lock-up
agreement with you that is substantially similar to this letter for the
remaining portion of such 90-day period and such acquisition is approved by
Salomon Smith Barney Inc.](1)
If for any reason the Underwriting Agreements shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreements), the agreement
set forth above shall likewise be terminated.
Yours very truly,
[Signature]
[Name and address]
- --------------
(1) Use bracketed text for all signatories other than ST.
<PAGE> 46
APPENDIX A
[LEGAL OPINION OF COUNSEL TO SELLING SHAREHOLDERS]
(i) The Underwriting Agreements, the Power-of-Attorney, the
Custody Agreement and the Selling Shareholder Escrow Agreement have been
duly executed and delivered by the Selling Shareholder and the Selling
Shareholder has full legal right and authority to sell, transfer and
deliver, in the manner provided in the Underwriting Agreements, the
Custody Agreement and the Selling Shareholder Escrow Agreement, the
Securities being sold by such Selling Shareholder under the Underwriting
Agreements.
(ii) Assuming that an Underwriter acquires its interest in the
ADSs it has purchased from such Selling Shareholder without notice of an
adverse claim (within the meaning of Section 8-105 of the New York
Uniform Commercial Code (the "UCC")), such Underwriter that has
purchased such ADSs delivered to The Depository Trust Company or other
securities intermediary, as the case may be, by making payment therefor
pursuant to the Underwriting Agreements, and that has had such ADSs
credited to the securities account or accounts of such Underwriter
maintained with The Depository Trust Company or such other securities
intermediary, as the case may be, will have acquired a security
entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to
such ADSs purchased by such Underwriter, and no action based on any such
adverse claim (within the meaning of Section 8-102(a)(1) of the UCC) may
be asserted against such Underwriter with respect to such ADSs.
(iii) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by any
Selling Shareholder of the transactions contemplated in the Underwriting
Agreements, except such as may have been obtained under the Act and such
as may be required under the blue sky laws of any jurisdiction and the
securities laws of any jurisdiction outside the United States in
connection with the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained.
(iv) Neither the sale of the Securities or ADSs representing
deposited shares being sold by any Selling Shareholder nor the
consummation of any other of the transactions contemplated in the
Underwriting Agreements or the Deposit Agreement by any Selling
Shareholder or the fulfillment of the terms hereof by any Selling
Shareholder will conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or By-laws of the
Selling Shareholder or the terms of any indenture or other agreement or
instrument known to such counsel and to which any Selling Shareholder or
any of its subsidiaries is a party or bound, or any judgment, order or
decree known to such counsel to be applicable to any Selling Shareholder
or any of its subsidiaries of any court, regulatory body, administrative
agency, governmental body or
A-1
<PAGE> 47
arbitrator having jurisdiction over any Selling Shareholder or any of
its subsidiaries.
(v) Assuming that (a) Securities to be purchased by any
Underwriter or to be delivered to the Depositary have been credited to
the Escrow Account (as defined in the Selling Shareholder Escrow
Agreement) in accordance with the provisions of the Selling Shareholder
Escrow Agreement and (b) a certificate substantially in the form of
Annex A to the Selling Shareholder Escrow Agreement has been delivered
by a Selling Shareholder in accordance with the provisions of the
Selling Shareholder Escrow Agreement, such Underwriter and the
Depositary, as the case may be, will have acquired all of the rights of
the Selling Shareholder with respect to such Securities. [This opinion
(v) is to be provided by Singapore counsel]
A-2
