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EXHIBIT 1.3
DATED 29TH OCTOBER, 1999
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
AS COMPANY
OVERSEAS UNION BANK LIMITED
AS LEAD MANAGER AND UNDERWRITER
- AND -
CITICORP INVESTMENT BANK (SINGAPORE) LIMITED
AS CO-LEAD MANAGER AND UNDERWRITER
-------------------------------------------------
MANAGEMENT AND UNDERWRITING AGREEMENT
RELATING TO THE
SINGAPORE RETAIL OFFERING
-------------------------------------------------
XXXXX & XXXXXXXX,
00, XXXXXXXX XXXX, #00-00,
XXXX XXXXX,
XXXXXXXXX 000000.
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CONTENTS
CLAUSE HEADING PAGE
------ ------- ----
1. DEFINITIONS 2
2. SINGAPORE RETAIL OFFERING 5
3. SUBSCRIPTION AND OPTION 5
4. SINGAPORE PROSPECTUS 5
5. FEE AND COMMISSION 6
6. DELIVERY AND PAYMENT 6
7. WARRANTIES AND UNDERTAKINGS 7
8. SUB-UNDERWRITING 16
9. BROKERAGE 16
10. CONDITIONS 16
11. RESCISSION AND TERMINATION 17
12. ANNOUNCEMENTS 18
13. ADVERTISEMENT 18
14. CONSENT TO XXXXXXXXXX 00
00. TIME OF ESSENCE 18
16. COUNTERPARTS 18
17. NOTICES 18
18. AGREEMENT AMONG MANAGERS 19
19. SUCCESSORS 20
20. GOVERNING LAW 21
SCHEDULE 1 - UNDERWRITING COMMITMENTS 22
SCHEDULE 2 - FORM OF CERTIFICATE 23
SCHEDULE 3 - AUTHORISED SIGNATORIES 24
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T H I S A G R E E M E N T is made on 29th October, 0000
X X X X X X N:-
(1) CHARTERED SEMICONDUCTOR MANUFACTURING LTD (the "Company"), a company
incorporated in Singapore with its registered office at 00, Xxxxxxxxx
Xxxxxxxxxx Xxxx X, Xxxxxx 0, Xxxxxxxxx 000000;
(2) OVERSEAS UNION BANK LIMITED ("OUB" or the "Lead Manager"), a company
incorporated in Singapore with its registered office at 0, Xxxxxxx Xxxxx,
XXX Xxxxxx, Xxxxxxxxx 000000; and
(3) CITICORP INVESTMENT BANK (SINGAPORE) LIMITED, a company incorporated in
Singapore with its registered office at 0, Xxxxxxx Xxx, #00-00/00, XXX
Xxxxxxxx, Xxxxxxxxx 000000 ("Citicorp" or the "Co-Lead Manager" and
together with the Lead Manager, the "Managers").
W H E R E A S:-
(A) The Company is a company limited by shares incorporated in Singapore on
16th November, 1987 and has at the date of this Agreement an authorised share
capital of S$800,000,000.540 consisting of 3,076,923,079 ordinary shares of
S$0.26 each, of which 988,847,853 ordinary shares of S$0.26 each have been
issued and are fully paid.
(B) The Company proposes to issue the New Shares (as defined below) and to
offer the New Shares by way of a Global Offering (as defined below) comprising:-
(i) 150,000,000 New Shares directly or in the form of ADSs (as defined
below) pursuant to the U.S. Offering (as defined below);
(ii) 75,000,000 New Shares directly or in the form of ADSs pursuant to
the International Offering (as defined below); and
(iii) 25,000,000 New Shares pursuant to the Singapore Retail Offering
(as defined below),
at the Offering Price (as defined below).
(C) Pursuant to the U.S. Underwriting Agreement (as defined below), the Company
has agreed to issue an aggregate of 150,000,000 New Shares, directly or in the
form of ADSs (the "U.S. Underwritten Shares"), and to grant to the U.S.
Underwriters (as defined below) an option to purchase from the Company up to
22,500,000 additional new Shares directly or in the form of ADSs to cover
over-allotments (the "U.S. Option Shares" and, together with the U.S.
Underwritten Shares, the "U.S. Securities").
(D) Pursuant to the International Underwriting Agreement (as defined below),
the Company has agreed to issue an aggregate of 75,000,000 New Shares, directly
or in the form of ADSs (the "International Underwritten Shares"), and to grant
to the International Underwriters (as defined below) an option to purchase from
the Company up to 11,250,000 additional new Shares directly or in the form of
ADSs to cover over-allotments (the "International Option Shares" and, together
with the International Underwritten Shares, the "International Securities").
(E) Pursuant to the Agreement Among U.S. Underwriters, International
Underwriters and Singapore Underwriters (as defined below), the International
Underwriters and the Managers may purchase from the U.S Underwriters a portion
of the U.S. Securities, the U.S
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Underwriters and the Managers may purchase from the International Underwriters a
portion of the International Securities and the U.S Underwriters and the
International Underwriters may purchase from the Managers a portion of the
Singapore Securities (as defined below).
(F) As part of the Global Offering, the U.S. Underwriters, the International
Underwriters and the Managers have agreed to reserve up to five per cent. of the
New Shares (including New Shares represented by ADSs) out of the Global Offering
(the "Directed Shares") for priority allocation to the Company's employees and
business associates, to the directors, officers and employees of the Company's
affiliates and to certain charitable organisations in Singapore (the
"Participants") at the Offering Price (the "Directed Share Program"). Any
Directed Shares not orally confirmed for purchase by any Participant by the end
of the business day on which the Underwriting Agreements (as defined below) are
executed will be offered to the public by the U.S. Underwriters, the
International Underwriters and the Managers as set out in the Agreement Among
U.S Underwriters, International Underwriters and Singapore Underwriters.
(G) The Company has obtained the approval in-principle from the Stock Exchange
of Singapore Limited (the "Stock Exchange") for the admission of all the issued
ordinary shares of S$0.26 each in the capital of the Company and all the New
Shares to the Official List of the Stock Exchange.
(H) The Company has requested OUB to lead manage and Citicorp to co-lead
manage, and OUB and Citicorp have agreed to lead manage and co-lead manage,
respectively, the Singapore Retail Offering (as defined below) on its behalf and
the Company has requested the Managers, and the Managers have agreed, to
subscribe for, or procure subscription for, the Invitation Shares (as defined
below), upon the terms and subject to the conditions of this Agreement.
I T I S A G R E E D as follows:-
1. DEFINITIONS
(A) In this Agreement:-
(i) except to the extent that the context requires otherwise:-
"ADSs" means American Depositary Shares, evidenced by American
depositary receipts, with each ADS representing 10 Shares;
"Agreement Among U.S. Underwriters, International Underwriters and
Singapore Underwriters" means the agreement dated 28th October,
1999 (New York time) entered into by the U.S. Underwriters, the
International Underwriters and the Managers, relating to the
Global Offering;
"Closing Date" means 4th November, 1999 (or such later date as the
Company and OUB may agree);
"Depository" has the meaning ascribed to it in Section 130A of the
Companies Act, Chapter 50 of Singapore;
"Directors" means the Directors of the Company named in the
Singapore Prospectus;
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"Global Offering" means the International Offering, the U.S.
Offering and the Singapore Retail Offering;
"Group" means the Company and its subsidiaries;
"International Offering" means the offering of New Shares directly
or in the form of ADSs to investors outside the U.S. and Canada;
"International Underwriters" means the International Underwriters
named in the International Underwriting Agreement;
"International Underwriting Agreement" means the underwriting
agreement dated 28th October, 1999 (New York time) entered into
between the Company and the International Underwriters, relating
to the International Offering;
"Invitation Shares" means the Offer Shares and the Singapore
Directed Shares;
"market day" means a day on which the Stock Exchange is open for
securities trading;
"NASDAQ" means Nasdaq National Market;
"New Shares" means 250,000,000 new ordinary shares of S$0.26 each
in the capital of the Company;
"Offer Shares" means 23,750,000 of the New Shares offered by way
of a public offering in Singapore;
"Offering Price" means U.S.$20 for each ADS and S$3.344 for each
New Share;
"Option Shares" means 3,750,000 new ordinary shares of S$0.26 each
in the capital of the Company;
"Prospectuses" means the International Prospectus, the U.S.
Prospectus (both as defined in the U.S. Underwriting Agreement and
the International Underwriting Agreement) and the Singapore
Prospectus;
"Shares" means ordinary shares of S$0.26 each in the capital of
the Company;
"Singapore Directed Shares" means 1,250,000 of the New Shares to
be allocated to Participants in Singapore;
"Singapore Dollar(s)" and the symbol "S$" mean the lawful currency
of Singapore;
"Singapore Prospectus" means the prospectus in the agreed form and
relating to the Singapore Retail Offering;
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"Singapore Retail Offering" means the offering of the Offer Shares
to investors in Singapore and Singapore Directed Shares to
Participants in Singapore on the terms and conditions of the
Singapore Prospectus;
"Singapore Securities" means the Invitation Shares and the Option
Shares;
"Specified Event" means an event occurring after the date of this
Agreement and prior to 10:00 p.m. on the Closing Date or (in the
event the option provided for in Clause 3(B) shall have been
exercised) the settlement date for the Option Shares)] which, if
it had occurred before the date of this Agreement, would have
rendered any of the warranties contained in Clause 7(A) untrue or
incorrect in any material respect;
"subsidiary" has the meaning ascribed to it in Section 5 of the
Companies Act, Chapter 50;
"Total Underwriting Commitments" means the aggregate of the
Underwriting Commitments;
"Underwriting Commitment" means, in relation to a Manager, the
number of Invitation Shares set out opposite its name in Schedule
1;
"U.S." means the United States of America;
"U.S. Dollars" or "US$" means the lawful currency of the U.S.;
"U.S. Offering" means the offering of New Shares directly or in
the form of ADSs to investors in the U.S. and Canada;
"U.S. Underwriters" means the U.S. Underwriters named in the U.S.
Underwriting Agreement;
"U.S. Underwriting Agreement" means the underwriting agreement
dated 28th October, 1999 (New York time) entered into between the
Company and the U.S. Underwriters, relating to the U.S. Offering;
and
"Underwriting Agreements" means the International Underwriting
Agreement, the U.S. Underwriting Agreement and this Agreement;
(ii) any reference to a document being "in the agreed form" means in
the form of the proof or draft thereof signed for identification
on behalf of the Company and OUB with such alterations (if any) as
may be agreed between the Company and OUB;
(iii) words importing the masculine gender shall, where applicable,
include the feminine and neuter genders and vice versa; and
(iv) a reference to a time of day shall be a reference to Singapore
time unless otherwise stated.
(B) References to "Recitals", "Clauses" and "Schedules" are to recitals of,
clauses of and schedules to this Agreement.
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(C) The headings are for convenience only and shall not affect the
interpretation of the provisions of this Agreement.
2. SINGAPORE RETAIL OFFERING
(A) Subject to the terms and conditions of this Agreement:-
(i) the Company appoints OUB, and OUB agrees, to lead manage the
Singapore Retail Offering; and
(ii) the Company appoints Citicorp, and Citicorp agrees, to co-lead
manage the Singapore Retail Offering.
(B) The Company authorises and directs OUB to do all such acts and things as it
may deem necessary or advisable for or in connection with the Singapore Retail
Offering and, in particular, but without prejudice to the foregoing and the
other provisions of this Agreement:-
(i) to assist the Company in the Singapore Retail Offering on the
terms and subject to the conditions of this Agreement; and
(ii) to make available copies of the Singapore Prospectus to such
persons as it may in its discretion deem fit.
3. SUBSCRIPTION AND OPTION
(A) Subject to the terms and conditions of this Agreement and in reliance upon
the representations, warranties and undertakings set out in Clause 7, the
Company agrees to issue, and each Manager agrees, severally and not jointly, to
subscribe or procure subscriptions for the number of Invitation Shares
representing its Underwriting Commitment at the Offering Price for each
Invitation Share.
(B) Subject to the terms and conditions of this Agreement and in reliance upon
the representations, warranties and undertakings set out in Clause 7, the
Company hereby grants an option to the Managers to, severally and not jointly
and each in the proportion borne by its Underwriting Commitment to the Total
Underwriting Commitments, subscribe or procure subscriptions for up to 3,750,000
Option Shares at the Offering Price, to cover over-allotments in the Singapore
Retail Offering. Such option may be exercised in whole or in part at any time
(but not more than once) on or before the 30th day after the date of the
Singapore Prospectus upon notice by OUB, on behalf of the Managers, to the
Company, setting out the number of Option Shares as to which the Managers are
exercising such option and the settlement date.
(C) The Company agrees with and undertakes to each of the Managers that the
Invitation Shares and the Option Shares will upon their issue rank in all
respects pari passu with the existing issued ordinary shares of S$0.26 each in
the capital of the Company.
4. SINGAPORE PROSPECTUS
Subject to the terms and conditions of this Agreement, not later than 29th
October, 1999 (or such other date as the Company and OUB may agree), the Company
undertakes to procure:-
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(i) a copy of the Singapore Prospectus (duly signed by or on behalf of
each of the Directors) to be lodged with the Registrar of
Companies and Businesses for registration together with any other
documents required by law to be annexed to the Singapore
Prospectus; and
(ii) all necessary copies of the Singapore Prospectus to be delivered
to the Stock Exchange.
5. FEE AND COMMISSION
(A) In consideration of the agreement by OUB to manage the Singapore Retail
Offering contained in Clause 2, the Company agrees to pay to OUB a management
fee in the amount and on the terms as stated in a letter dated 17th September,
1999 from the Managers to the Company.
(B) In consideration of the agreement by the Managers to subscribe or procure
subscriptions for the Invitation Shares contained in Clause 3(A) and the Option
Shares (subject to the option set out in Clause 3(B) having been duly exercised
in accordance with Clause 6), the Company agrees to pay to each Manager an
underwriting commission of one per cent. of the Offering Price for the total
number of Invitation Shares and the Option Shares (to the extent that the option
is exercised) which that Manager has agreed to subscribe or procure
subscriptions for pursuant to this Agreement. Such underwriting commission shall
be payable on the Closing Date or on the settlement date of the Option Shares,
as the case may be, and deducted from the aggregate Offering Price for the
Invitation Shares and the Option Shares, as the case may be, as provided in
Clause 6.
(C) The Company shall bear all expenses of or incidental to the Singapore
Retail Offering including, without limiting the generality of the foregoing, the
fees of the professional advisers of the Company, the cost of printing and
distributing the Singapore Prospectus, the cost of advertising the Singapore
Prospectus, the cost of printing this Agreement, registrar's charges,
accountancy fees, legal fees, the listing fees and other incidental fees payable
to the Stock Exchange for the listing application. The Company shall forthwith
upon request by the Managers (supported by documentary evidence thereof)
reimburse the amount of any such expenses which the Managers may have paid on
its behalf and shall reimburse the Managers for all out-of-pocket expenses
incurred by them in connection with this Agreement, as agreed and subject to the
aggregate maximum amount stated in a letter dated 17th September, 1999 from the
Managers to the Company.
(D) Any goods and services tax or other levies imposed by law (including but
not limited to the Goods and Services Tax Act, Chapter 117A of Singapore but
excluding income tax) or required to be paid in respect of any moneys payable to
or received or receivable by the Managers or any expenses incurred by the
Managers shall (except to the extent prohibited by law) be borne and paid by the
Company.
6. DELIVERY AND PAYMENT
(A) Delivery of and payment for the Invitation Shares and the Option Shares (if
the option provided for in Clause 3(B) shall have been exercised on or before
the fifth business day prior to the Closing Date) shall be made at 10:00 p.m. on
the Closing Date.
(B) The share certificates in respect of the Invitation Shares and the Option
Shares (if the option provided for in Clause 3(B) shall have been exercised on
or before the fifth business day prior to the Closing Date) shall be issued in
the name of, and delivered to, the
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Depository for the account of the Managers or such other persons as OUB, on
behalf of the Managers, may direct, against payment by the Managers, each in the
proportion borne by its Underwriting Commitment to the Total Underwriting
Commitments, of the aggregate net subscription moneys of the Invitation Shares
and, if applicable, the Option Shares (being the aggregate Offering Price of the
Invitation Shares and, if applicable, the Option Shares, less (i) (in the case
of OUB only) the management fee payable to OUB pursuant to Clause 5(A) and the
brokerage payable pursuant to Clause 9, and (ii) the underwriting commission
payable to the Managers pursuant to Clause 5(B)) to or to the order of the
Company in immediately available and freely transferable funds to such account
with such bank in Singapore as Salomon Brothers International Limited shall have
notified to OUB, on behalf of the Company, for such purpose.
(C) It is understood and agreed that the Closing Date shall occur
simultaneously with the "Closing Date" under the U.S. Underwriting Agreement and
the International Underwriting Agreement and that the settlement date for any
Option Shares occurring after the Closing Date, shall occur simultaneously with
the settlement date under the U.S. Underwriting Agreement and the International
Underwriting Agreement for any U.S. Option Shares and International Option
Shares occurring after the Closing Date.
(D) If the option provided for in Clause 3(B) is exercised after the fifth
business day prior to the Closing Date, the Company will deliver (at the expense
of the Company) to the Managers on the date specified by the Managers (which
shall be within five business days after exercise of said option), share
certificates representing the Option Shares in respect of which such option
shall have been exercised and issued in the name of the Depository, to the
Depository for the account of the Managers or such other persons as OUB, on
behalf of the Managers, may direct, against payment by the Managers, each in the
proportion borne by its Underwriting Commitment to the Total Underwriting
Commitments, of the aggregate net subscription moneys of the relevant number of
Option Shares in respect of which such options shall have been exercised (being
the aggregate Offering Price of such Option Shares, less the underwriting
commission payable to the Managers pursuant to Clause 5(B) and the brokerage
payable pursuant to Clause 9) to or to the order of the Company in immediately
available and freely transferable funds to such account with such bank in
Singapore as Salomon Brothers International Limited shall have notified to OUB,
on behalf of the Company, for such purpose.
(E) If settlement for the Option Shares occurs after the Closing Date, the
Company will deliver to the Managers on the settlement date for the Option
Shares, and the obligation of the Managers to subscribe or procure subscriptions
for the Option Shares shall be conditioned upon receipt of, supplemental
opinions, certificates and letters confirming as of such date the opinions,
certificates and letters delivered on the Closing Date pursuant to Clause 10.
7. WARRANTIES AND UNDERTAKINGS
(A) The Company warrants to and undertakes with each of the Managers as
follows:-
(i) Each of the Group has been duly incorporated and is validly
existing as a corporation under the laws of the jurisdiction in
which it is incorporated with full corporate power to own or
lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectuses, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified or be
in good standing would not, individually or in the
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aggregate, have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Group, taken as a whole.
(ii) All the outstanding share capital of each subsidiary has been duly
and validly authorized and issued and is fully paid and
non-assessable and, except for such shares of Chartered Silicon
Partners Pte Ltd ("CSP") as are owned by Hewlett-Packard Europe
B.V., or EDB Investments Pte Ltd which shares do not exceed 49% of
the outstanding voting shares of CSP, all the outstanding shares
of capital stock of the subsidiaries are owned by the Company
directly free and clear of any perfected security interests, liens
or encumbrances.
(iii) The Company's authorised, issued and outstanding equity
capitalization is as set forth in the Prospectuses. The
outstanding Shares have been duly and validly authorized and
issued and are fully paid and non-assessable. The Singapore
Securities being sold under this Agreement by the Company have
been duly and validly authorized, and, when issued and delivered
to the Depositary or its nominee in accordance with the Deposit
Agreement, will be validly issued, fully paid and non-assessable.
The holders of outstanding shares of capital stock of the Company
are not entitled to any preemptive or other rights to subscribe
for the Singapore Securities except for such rights that have been
effectively waived. Except as disclosed in the Prospectuses, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding. The Singapore
Securities are freely transferable by the Company to or for the
account of the several Underwriters, their designees and the
initial purchasers thereof, and except as set forth in the
Prospectuses there are no restrictions on subsequent transfers of
the Singapore Securities under the laws of Singapore.
(iv) The capital stock of the Company conforms in all material respects
to the description thereof contained in the Prospectuses. The
capital restructuring was approved by the Company's shareholders
at an extraordinary general meeting on 14th October, 1999 (the
"EGM") and has become effective and has been completed as
described in the Prospectuses under the heading "Capitalization."
The Articles of Association described in the Prospectuses under
the heading "Description of Ordinary Shares" were adopted by the
Company's shareholders at the EGM and are in full force and
effect.
(v) This Agreement has been duly authorized, executed and delivered by
the Company.
(vi) There is no franchise, contract or other document of a character
required to be described in the Prospectuses, or to be filed as an
exhibit thereto, which is not described or filed as required; and
the description of each such contract, franchise or document in
the Prospectuses is a fair description thereof in all material
respects; and each such franchise, contract or other document to
which the Company is a party, assuming due authorization,
execution and delivery thereof by all parties thereto, is
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enforceable against the Company in accordance with its terms and
is in full force and effect, and to the Company's knowledge, is a
legal, valid and binding obligation of the other parties thereto.
The statements in the Prospectuses under the heading "Taxation",
fairly summarize the matters therein described.
(vii) No stamp or other issuance or transfer taxes or duties and no
income, withholding or other taxes are payable by or on behalf of
the Managers to the Singapore government or taxing authority in
connection with (a) the execution and delivery of the Underwriting
Agreements, (b) the issuance of the Shares in the manner
contemplated by the Underwriting Agreements, (c) the sale and
delivery of the Shares to the Underwriters, or (d) except as
disclosed in the Prospectuses under the heading
"Taxation--Singapore Taxation", the resale and delivery of such
Shares by the U.S. Underwriters or the International Underwriters
in the manner contemplated in the Prospectuses.
(viii) No consent, approval (including exchange control approval),
authorization, filing with or order of any court or governmental
or regulatory agency or body is required under Singapore law in
connection with the transactions contemplated in this Agreement,
except such as have been obtained under the Companies Act, Chapter
50 of Singapore, and such as may be required under the blue sky or
similar laws of any jurisdiction in connection with the purchase
and distribution of the Singapore Securities by the Managers in
the manner contemplated in the Underwriting Agreements and the
Prospectuses except as may be required pursuant to the National
Association of Securities Dealers, Inc. rules, The Nasdaq Stock
Market, Inc. rules or the letter from the SES dated September 15,
1999 granting approval in principle for the listing and quotation
of the entire issued and share capital of the Company on the Main
Board of the SES, as have been obtained.
(ix) Neither the issue and sale of the Singapore Securities nor the
consummation of any other of the transactions contemplated in this
Agreement, the U.S. Underwriting Agreement, the International
Underwriting Agreement or the Deposit Agreement, nor the
fulfillment of the terms hereof or thereof will conflict with,
result in a breach or violation of, or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
or any of the subsidiaries pursuant to, (a) the memorandum and
articles of association of the Company or the constituent
documents of any of the subsidiaries, (b) the terms of any
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement, permit, license, franchise or other
agreement, obligation, condition, covenant or instrument to which
the Company or any of the subsidiaries is a party or bound or to
which its or their property is subject, or (c) any statute, law,
rule, regulation, judgment, order or decree applicable to the
Company or any of the subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of the
subsidiaries or any of its or their properties, except, with
respect to clause (b) or (c) above, such as would not individually
or in the aggregate, have a material adverse effect on (A) the
performance of this Agreement or the consummation of any of the
transactions
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contemplated herein or (B) the condition (financial or otherwise),
prospects, earnings, business or properties of the Group, taken as
a whole.
(x) The consolidated historical financial statements and schedules of
the Group (including the related notes) included in the Singapore
Prospectus present fairly in all material respects the financial
condition, results of operations, changes in financial position
and cash flows as of the dates and for the periods indicated,
comply as to form with the applicable accounting requirements of
the Act and have been prepared in conformity with generally
accepted accounting principles in Singapore applied on a
consistent basis throughout the periods indicated (except as
otherwise noted therein). The summary and selected financial data
included in the Singapore Prospectus fairly present in all
material respects, on the basis stated in the Singapore
Prospectus, the information included therein. The pro forma
financial statements included in the Singapore Prospectus include
assumptions that provide a reasonable basis for presenting the
significant effects directly attributable to the transactions and
the events described therein, the related pro forma adjustments
give appropriate effect to those assumptions, and the pro forma
adjustments reflect proper application of those adjustments to the
historical financial statement amounts in the pro forma financial
statements included in the Singapore Prospectus.
(xi) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of the subsidiaries or its or their property is
pending or, to the knowledge of the Company, threatened that (i)
could reasonably be expected to have a material adverse effect on
the performance of this Agreement or the consummation of any of
the transactions contemplated hereby or (ii) could reasonably be
expected to have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Group, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as
set forth or contemplated in the Prospectuses (exclusive of any
supplement thereto).
(xii) Each of the Group owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted.
Any real property and buildings held under lease by the Company or
any of the subsidiaries are held under valid, subsisting and
enforceable leases, with such exceptions as are not material and
do not interfere with the use made or proposed to be made of such
property and buildings by the Company or any of the subsidiaries,
in each case except as described in or contemplated in the
Prospectuses.
(xiii) Neither the Company nor any of the subsidiaries is in violation or
default of (a) any provision of its memorandum and articles of
association or other constituent documents, (b) the terms of any
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which it is a party or bound
or to which its property is subject, or (c) any statute, law,
rule, regulation, judgment, order or decree applicable to the
Company or any of the subsidiaries of any court, regulatory body,
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administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of the
subsidiaries or any of its or their properties, except, with
respect to clause (b) or (c) above, such as would not individually
or in the aggregate, have a material adverse effect on (A) the
performance of this Agreement or the consummation of any of the
transactions contemplated herein or (B) the condition (financial
or otherwise), prospects, earnings, business or properties of the
Group, taken as a whole.
(xiv) The Company has not taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, under the laws
in Singapore, the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of
the Singapore Securities, provided, however, that this provision
shall not apply to any trading or stabilization activities
conducted by the Managers.
(xv) Each of the Group possesses all licenses, permits, certificates
and other authorizations issued by the Singapore regulatory
authorities necessary to conduct its business as currently
conducted, except in any case in which the failure so to possess
any such license, permit, certificate or other authorization would
not, individually or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Group, taken as a whole.
Neither the Company nor any of the subsidiaries has received any
notice of proceedings relating to the revocation or modification
of any such license, permit, certificate or authorization which,
singly or in the aggregate, if the subject of an unfavorable
decision ruling or findings, would have a material adverse effect
on the condition (financial or otherwise), prospects, earnings,
business or properties of the Group, taken as a whole, whether or
not arising from transactions in the ordinary course of business,
except as set forth in the Singapore Prospectus (exclusive of any
supplement thereto).
(xvi) No labor dispute with the employees of the Company or any of the
subsidiaries exists or to the Company's best knowledge,
threatened, and the Company is not aware of any existing labor
disturbance by the employees of the Company or any of its
subsidiaries, that could have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business
or properties of the Group, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto).
(xvii) Each of the Group is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts
as are prudent and customary in the businesses in which it is
engaged. All policies of insurance insuring the Company or any of
the subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect;
each of the Group is in compliance with the terms of such policies
and instruments in all material respects; and there are no claims
by the Company or any of the subsidiaries under any such policy or
instrument as to which any insurance company is denying
14
liability or defending under a reservation of rights clause.
Neither the Company nor any of the subsidiaries has been refused
any insurance coverage sought or applied for. The Company has no
reason to believe that either the Company or any of the
subsidiaries will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a material adverse effect
on the condition (financial or otherwise), prospects, earnings,
business or properties of the Group, taken as a whole, whether or
not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectuses
(exclusive of any supplement thereto).
(xviii) None of the Company's subsidiaries is currently prohibited,
directly or indirectly, from paying any dividends to the Company,
from making any other distribution on its capital stock, from
repaying to the Company any loans or advances to it from the
Company or from transferring any of its property or assets to the
Company or the other subsidiary, except for certain restrictions
as set forth in the Joint Venture Agreement dated July 4, 1997 by
and among the Company, Hewlett-Packard Europe B.V. and EDB
Investments Pte Ltd (as amended) or as described in or
contemplated in the Prospectuses.
(xix) The Group owns, possesses, licenses or has other rights to use, on
reasonable terms, all patents, patent applications, trademarks,
service marks, trade and service xxxx registrations, trade names,
licenses, copyrights, inventions, trade secrets, technology,
know-how and other intellectual property (collectively, the
"Intellectual Property") necessary for the conduct of the
Company's business as now conducted, and as described in the
Prospectuses, except where the failure to so own, possess, license
or have other rights to use would not have a material adverse
effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Group, taken as a whole,
whether or not arising from the ordinary course of business.
Except as set forth in the Prospectuses under the captions "Risk
Factors" or "Business Intellectual Property", to the Company's
best knowledge, (a) there are no rights of third parties to any
such Intellectual Property; (b) there is no material unauthorized
use, infringement or misappropriation by third parties of any such
Intellectual Property; (c) there is no pending or threatened
action, suit, proceeding or claim by others challenging the
Company's rights in or to any such Intellectual Property, and the
Company is unaware of any facts which would form a reasonable
basis for any such claim; (d) there is no pending or threatened
action, suit, proceeding or claim by others challenging the
validity or scope of any such Intellectual Property, and the
Company is unaware of any facts which would form a reasonable
basis for any such claim; (e) there is no pending or threatened
action, suit, proceeding or claim by others that the Company
infringes or otherwise violates any patent, trademark, copyright,
trade secret or other proprietary right of others in any
Intellectual Property, and the Company is unaware of any other
fact which would form a reasonable basis for any such claim; and
(f) there is no prior art of which the Company is aware that may
render any Singapore patent held by the Company invalid or any
Singapore patent
15
application held by the Company unpatentable which has not been
disclosed to the Singapore Trademark and Patent Office, in the
case of any of (a) through (f) above, which would have a material
adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Group, taken as
a whole, whether or not arising from the ordinary course of
business.
(xx) Each of the Group has implemented a comprehensive, detailed
program to analyze and address the risk that the computer hardware
and software used by them may be unable to operate correctly with
respect to calendar dates falling on or after January 1, 2000 in
the same manner, and with the same functionality, as with respect
to calendar dates falling on or before December 31, 1999 (the
"Year 2000 Problem"), and the Company and each of the subsidiaries
reasonably believe that such program will address the Year 2000
Problem with respect to the material operations of the Company on
a timely basis and will not have a material adverse effect upon
the condition (financial or otherwise), prospects, earnings,
business or properties of the Group, taken as a whole.
(xxi) The Company has filed all Singapore tax returns that are required
to be filed or has requested extensions thereof, except in any
case in which the failure so to file would not have a material
adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Group, taken as
a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectuses (exclusive of any supplement thereto) and has paid
all taxes required to be paid by it and any other assessment, fine
or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine
or penalty that is currently being contested in good faith or as
would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Group, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectuses (exclusive of any
supplement thereto).
(xxii) Each of the Group maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (a)
transactions are executed in accordance with management's general
or specific authorizations; (b) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles in
Singapore and to maintain asset accountability; (c) access to
assets is permitted only in accordance with management's general
or specific authorization; and (d) the recorded accountability for
assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.
(xxiii) The Company represents and warrants that (i) the Prospectuses
comply, and any further amendments or supplements thereto will
comply, with any applicable laws or regulations of foreign
jurisdictions in which the Prospectuses, as amended or
supplemented, if applicable, are distributed in connection with
the Directed Share Program, and that (ii) no
16
authorization, approval, consent, license, order, registration or
qualification of or with any government, governmental
instrumentality or court, other than such as have been obtained,
is necessary under the securities laws and regulations of
Singapore in respect of the Directed Shares.
(xxiv) The Group (i) is in compliance with any and all Singapore laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws") applicable to
conduct their respective businesses, (ii) has received and is in
compliance with all permits, licenses or other approvals required
of them under applicable Environmental Laws to conduct their
respective businesses and (iii) have not received notice of any
actual or potential liability for the investigation or remediation
of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability would
not, individually or in the aggregate, have a material adverse
change in the condition (financial or otherwise), prospects,
earnings, business or properties of the Group, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in the Prospectuses (exclusive of
any supplement thereto).
(B) The obligations of OUB under Clause 2 and the obligations of the Managers
under Clause 6 are made on the basis of the warranties contained in sub-Clause
(A) above and with the intention that the same shall remain true and accurate in
all respects up to and including the Closing Date and (in the event the option
provided for in Clause 3(B) is exercised) the settlement date for the Option
Shares, and the Company undertakes to and agrees with each of the Managers:-
(i) to use all reasonable endeavours not to permit any Specified Event
to occur before the Closing Date and (in the event the option
provided for in Clause 3(B) is exercised) the settlement date for
the Option Shares; and
(ii) to forthwith give notice to OUB of any Specified Event which has
occurred or come to its knowledge prior to the Closing Date and
(in the event the option provided for in Clause 3(B) is exercised)
the settlement date for the Option Shares and to forthwith take
such steps as the Managers may reasonably require to remedy and/or
publicise the same without prejudice to the Managers' rights and
remedies under or pursuant to this Agreement.
(C) The Company undertakes to and agrees with each of the Managers to fully and
effectually indemnify each of the Managers from and against all losses, claims,
costs (including legal costs on a full indemnity basis), charges, liabilities,
actions and demands which any of the Managers may incur or suffer or which may
be made against any of the Managers in connection with or arising out of the
issue of the Singapore Prospectus or the Singapore Retail Offering or any breach
of the warranties contained in sub-Clause (A) above or any failure or delay by
the Company in performing the Company's undertakings in sub-Clause (E) below,
save and except for any loss or damage arising out of any wilful default, fraud
or negligence on the part of the relevant Manager.
17
(D) The warranties in sub-Clause (A) above shall be deemed to be repeated on
and as of the Closing Date and (in the event the option provided for in Clause
3(B) is exercised) the settlement date for the Option Shares and the obligations
of the Company in respect thereof shall continue in full force and effect
notwithstanding completion of the subscription of the Invitation Shares and (in
the event the option provided for in Clause 3(B) is exercised) the Option Shares
under this Agreement or any investigation by any of the Managers.
(E) The Company hereby undertakes to the Managers:-
(i) not to vary or issue any supplement to the Singapore Prospectus
without the prior consent in writing of the Managers, such consent
not to be unreasonably withheld, and not to disclose, announce or
otherwise disseminate any information concerning the Company or
the Group or the New Shares pending the issue of the Singapore
Prospectus or any information which is not contained in the
Singapore Prospectus or which may in the opinion of the Managers
be inconsistent with the information contained therein, without
the consent of the Managers, such consent not to be unreasonably
withheld;
(ii) to supply the Managers with any information or document which they
may reasonably require affecting the accounts or affairs of the
Company and to do all such other things and sign or execute such
documents as may reasonably be required by the Managers in order
to complete the Singapore Retail Offering;
(iii) to use its best endeavours to procure the share registrar to do
all such acts and things as may be required by the Managers in
connection with the Singapore Retail Offering and the transactions
associated with the New Shares including the expeditious
processing of the applications for the New Shares;
(iv) to use its best endeavours to obtain and maintain the listing and
quotation of the New Shares on the Stock Exchange for a year from
the date of admission to the Official List of the Stock Exchange;
(v) not to take any action to permit a public offering of the New
Shares or distribute the Singapore Prospectus or any document or
form relating to the New Shares or other material relating to the
Singapore Retail Offering in any country or jurisdiction except in
Singapore or any other country or jurisdiction where such offering
or distribution is permitted;
(vi) except for the Option Shares and any Shares to be issued by the
Company pursuant to the exercise of options granted pursuant to
the Chartered Semiconductor Manufacturing Ltd Share Option Plan
1999, not to issue at any time on or before the expiry of 60 days
after the Closing Date, any marketable securities (in the form of,
or represented or evidenced by, bonds, notes, debentures, loan
stock or other securities) or shares or options therefor without
the prior written consent of the Managers, such consent not to be
unreasonably withheld;
(vii) not to, and will procure that its subsidiaries will not, at any
time on or before the Closing Date and (in the event the option
provided for in Clause 3(B) is exercised) the settlement date for
the Option Shares
18
without the prior written consent of the Managers, such consent
not to be unreasonably withheld, dispose of in any manner
(otherwise than in the ordinary and normal course of their
respective businesses) any of their respective properties, fixed
assets and/or subsidiaries or any other asset which is (in the
reasonable opinion of the Managers) of a material nature; and
(viii) not to take any action or do any act or thing which may be
materially prejudicial to the Singapore Retail Offering.
8. SUB-UNDERWRITING
OUB shall be at liberty to sub-underwrite its underwriting obligations
under this Agreement upon such terms and conditions as set out in a letter dated
17th September, 1999 from the Managers to the Company. Citicorp shall be at
liberty to sub-underwrite its underwriting obligations under this Agreement
provided that Citicorp shall not sub-underwrite its underwriting obligations to
any financial institution other than Citibank, N.A. or any of its affiliates
without seeking clearance from OUB.
9. BROKERAGE
The Company will pay brokerage at the rate of one per cent of the Offering
Price of the Invitation Shares to OUB for full allocation amongst members of the
Singapore Retail Syndicate (as defined in the Singapore Prospectus) based on the
final allocation of Invitation Shares to investors through the relevant member
of the Singapore Retail Syndicate.
10. CONDITIONS
(A) This Agreement and the obligations of the Managers under this Agreement are
conditional upon:-
(i) the Singapore Prospectus having been registered with the Registrar
of Companies and Businesses by 29th October, 1999;
(ii) such approvals as may be required for the transactions described
in this Agreement and in the Singapore Prospectus being obtained,
and not withdrawn or amended, before 29th October, 1999 (or such
other date as the Company and the Managers may agree);
(iii) the delivery to OUB on the Closing Date and (in the event the
option provided for in Clause 3(B) is exercised) the settlement
date for the Option Shares of a certificate in the form set out in
Schedule 2 signed by a Director, a copy of which shall thereafter
be delivered to Citicorp for its record;
(iv) the U.S. Underwriting Agreement and the International Underwriting
Agreement not having been terminated or rescinded prior to the
Closing Date; and
(v) the delivery of and payment for the New Shares (other than the
Invitation Shares) pursuant to the U.S. Underwriting Agreement and
the International Underwriting Agreement taking place
substantially concurrently (giving effect to the time difference
between New York and
19
Singapore) with the delivery of and payment for the
Invitation Shares pursuant to this Agreement on the
Closing Date.
(B) The Company shall use its best endeavours to procure the fulfilment of such
conditions and, in particular, shall furnish such information, supply such
documents, give such undertaking(s) and do all such acts and things as may be
required to enable the New Shares to be admitted to the Official List of the
Stock Exchange and the ADSs listed on NASDAQ as aforesaid.
(C) If such conditions are not fulfilled, this Agreement shall ipso facto cease
and determine and (save in respect of any breach of sub-Clause (B) above) no
party shall have any claim against the others for costs, damage, compensation or
otherwise except that the Company shall continue to be bound by its obligations
under Clauses 5 and 7, shall indemnify the Managers in accordance with Clause 7
and shall reimburse the Managers for all out-of-pocket expenses incurred by them
in connection with this Agreement as agreed and subject to the aggregate maximum
amount stated in a letter dated 17th September, 1999 from the Managers to the
Company, provided that the Managers shall be entitled to waive the condition in
sub-Clause (A)(iv) above.
11. RESCISSION AND TERMINATION
(A) Notwithstanding anything herein contained, the Managers may, by notice in
writing to the Company, rescind this Agreement if prior to 10:00 p.m. on the
Closing Date:-
(i) there shall come to the knowledge of the Managers any breach of
any of the warranties or undertakings contained in Clause 7(A) or
that any of the warranties by the Company in Clause 7(A) is untrue
or incorrect; or
(ii) any Specified Event comes to the knowledge of the Managers;
(iii) trading in the Company's Shares shall have been suspended by the
Stock Exchange or trading in securities generally on the Stock
Exchange shall have been suspended or limited or minimum prices
shall have been established on the Stock Exchange;
(iv) a banking moratorium shall have been declared by the Singapore
authorities; or
(v) there shall have occurred any outbreak or escalation of
hostilities involving Singapore, declaration by Singapore of a
national emergency or war or other calamity or crisis the effect
of which on financial markets is such as to make it, in the sole
judgment of the Managers, impracticable or inadvisable to proceed
with the offering or delivery of the prospectus as contemplated by
the Singapore Prospectus (exclusive of any supplement thereto).
(B) If this Agreement is so rescinded, the Company shall reimburse the Managers
for all out-of-pocket expenses incurred by them in connection with this
Agreement as agreed and subject to the aggregate maximum amount stated in a
letter dated 17th September, 1999 from the Managers to the Company.
20
(C) In addition, rescission or termination of this Agreement for any reason
shall be without prejudice to any rights of the Managers in respect of any such
breach as is therein referred to and shall not release the Company from its
obligations under Clauses 5 and 7, which shall continue in full force and
effect.
12. ANNOUNCEMENTS
No public announcement or communication concerning the Singapore Retail
Offering may be made or despatched by the Company without the prior consent in
writing of OUB (save as may be required by law or the rules of the Stock
Exchange or NASDAQ).
13. ADVERTISEMENT
The Company and OUB agree that tombstone advertisements of the Singapore
Retail Offering shall be made by OUB on behalf of and at the expense of the
Company on such dates and in such newspapers as OUB may, in consultation with
the Company, determine.
14. CONSENT TO DISCLOSURE
The Company consents to the disclosure by the Managers to the Stock
Exchange of any information relating to the Company and its affairs, operations
or business, where such disclosure is deemed to be necessary by the Managers for
the purposes of or in connection with the Singapore Retail Offering.
15. TIME OF ESSENCE
Any time, date or period mentioned in any provision of this Agreement may
be extended by mutual agreement between the parties but as regards any time,
date or period originally fixed or any time, date or period so extended as
aforesaid, time shall be of the essence.
16. COUNTERPARTS
This Agreement may be signed in any number of counterparts and by the
parties on separate counterparts, each of which when so executed shall be an
original, but all counterparts shall together constitute one and the same
document.
17. NOTICES
Any notice or other communication required or permitted to be given or made
hereunder shall be in writing and delivered personally or sent by post or by
facsimile addressed to the intended recipient thereof at its address or at its
facsimile number set out below (or to such other address or facsimile number it
may from time to time duly notify the other parties hereto):-
the Company : Chartered Semiconductor Manufacturing Ltd
00, Xxxxxxxxx Xxxxxxxxxx Xxxx X,
Xxxxxx 0, Xxxxxxxxx 000000.
Attention : Legal Department
Fax number : 362 2909
21
OUB : Overseas Union Bank Limited
0, Xxxxxxx Xxxxx,
XXX Xxxxxx, Xxxxxxxxx 000000.
Attention : Soon Boon Siong
Fax number : 534 2232
Citicorp : Citicorp Investment Bank (Singapore) Limited
0, Xxxxxxx Xxx, #00-00/00,
XXX Xxxxxxxx, Xxxxxxxxx 000000.
Attention : Messrs Soon Tit Xxxx,
Xxxx Xxx and
Pang Xxxx Xxxx
Fax number : 224 7801
Any notice or communication shall be deemed to have been duly served (if given
or made personally or by facsimile) immediately or (if given or made by letter)
24 hours after posting. In the case of any notice or communication given by the
Company pursuant to Clause 7, such notice or communication shall be delivered
personally or sent by post and shall be given by the Authorised Signatories (as
defined in Schedule 3), whose names(s) and signature(s) are set out in Schedule
3, on behalf of the Company.
18. AGREEMENT AMONG MANAGERS
(A) Any notice, decision, approval, consent or waiver of the Managers under
this Agreement and the Agreement Among U.S. Underwriters, International
Underwriters and Singapore Underwriters shall be made or given by OUB for itself
and on behalf of Citicorp, with prior written consent of Citicorp, such consent
not to be unreasonably withheld and shall be binding on Citicorp.
(B) Citicorp hereby authorises OUB as its agent and on its behalf to do all
acts and things which it is required or entitled to do under this Agreement
including without prejudice to the generality of the foregoing:-
(i) arranging for payment for the Invitation Shares for which Citicorp
has subscribed or procured subscriptions for pursuant to Clause 5;
and
(ii) arranging for delivery to the Depository of the Invitation Shares
for which Citicorp has subscribed or procured subscriptions for
pursuant to Clause 5.
(C) Citicorp hereby agrees to OUB publishing its name, in the form in which it
appears in this Agreement, in any publications relating to the Singapore Retail
Offering, with prior consent of Citicorp, such consent not to be unreasonably
withheld.
(D) In acting under this Agreement, the Managers shall be entitled to rely on
any communication or document believed by them to be genuine and correct and to
have been signed or sent by the proper person and shall be entitled to rely as
to legal or other professional matters on opinions or statements of any legal or
other professional advisers appointed by them.
22
(E) Nothing contained in this Agreement shall constitute the Managers an
association or partners with each other or render any of the Managers liable for
the obligations of the other Manager. Neither of the Managers shall be bound in
any way by the acts of the other Manager and none of the Managers shall have any
right to contribution or account against the other Manager except as expressly
or by necessary implication provided in this Agreement. Except as otherwise
expressly provided in this Agreement, each Manager shall bear all losses and
expenses incurred by it and be entitled to retain all profits earned by it in
connection with this Agreement.
(F) Each Manager acknowledges that it has not relied on any statement, opinion,
forecast or other representation made by the other Manager to induce it to enter
into this Agreement or the transactions contemplated by this Agreement and that
it has made and will continue to make, without reliance on the other Manager and
based on such documents as it considers appropriate, its own appraisal of the
creditworthiness of the Company and its own independent investigation of the
financial condition and affairs of the Company and of its own tax position in
connection with the execution of this Agreement or the transactions contemplated
by this Agreement, and the sale or purchase and resale (as the case may be) of
the Invitation Shares.
(G) Each Manager shall not have any responsibility to the other Manager on
account of the condition (financial or otherwise) of the Company or for the
completeness or accuracy of any statements, representations or warranties in, or
the validity, enforceability or sufficiency of, this Agreement or any other
document executed pursuant hereto or as hereby contemplated.
(H) Each Manager shall not be liable to the other Manager for any loss or
damage howsoever arising from any action taken or omitted under or in connection
with this Agreement or the transactions hereby contemplated. Notwithstanding
anything contained in this Agreement, each Manager shall have no responsibility
or liability to the other Manager on account of any loss the other Manager may
suffer as a result of its execution or performance of this Agreement or for the
execution, effectiveness, adequacy, genuineness, validity, enforceability or
admissibility in evidence of this Agreement or the transactions hereby
contemplated or for acting (or for refraining from acting) in accordance with
the instructions of that Manager.
(I) Each Manager may, without any liability to account to the other Manager,
accept deposits from, lend money to and generally engage in any kind of banking
or trust or other business with the Company or any of its subsidiaries or
associated companies.
(J) Each Manager shall contribute (in the proportion borne by its Underwriting
Commitment to the Total Underwriting Commitments) towards the reimbursement for
any costs and expenses incurred by the Managers in contemplation of, or
otherwise in connection with, the enforcement or preservation of any rights or
the performance of any term under this Agreement (including, in each case, the
fees and expenses of legal or other professional advisers on a full indemnity
basis) which are not recovered, or which the Managers agree not to claim, from
the Company under this Agreement. The liability of each Manager for such
contribution under this sub-Clause shall remain notwithstanding that this
Agreement is terminated pursuant to the terms of this Agreement.
19. SUCCESSORS
This Agreement shall be binding upon and shall enure to the benefit of the
respective successors in title of the parties thereto.
20. GOVERNING LAW
This Agreement shall be governed by, and construed in all respects in
accordance with, the laws of Singapore.
23
SCHEDULE 1
UNDERWRITING COMMITMENTS
Number of
Name of Manager Invitation Shares
--------------- -----------------
1. Overseas Union Bank Limited 17,875,000
2. Citicorp Investment Bank (Singapore) Limited 7,125,000
----------
Total Underwriting Commitments 25,000,000
==========
24
SCHEDULE 2
FORM OF CERTIFICATE
To: Overseas Union Bank Limited,
0, Xxxxxxx Xxxxx,
XXX Xxxxxx,
Xxxxxxxxx 000000. [ ](1), 1999
Dear Sirs,
I, [ ], a Director of Chartered Semiconductor
Manufacturing Ltd (the "Company"), refer to the Management and Underwriting
Agreement (the "Agreement") dated 29th October, 1999 made between (1) the
Company, as Company, (2) Overseas Union Bank Limited, as Lead Manager and
Underwriter for the Singapore Retail Offering, and (3) Citicorp Investment Bank
(Singapore) Limited, as Co-Lead Manager and Underwriter for the Singapore Retail
Offering, and hereby certify, on behalf of the Company, that:-
(i) I have been duly authorised by the Company to sign this
Certificate; and
(ii) to the best of my knowledge and belief, having made all reasonable
enquiries, since the date of the most recent financial statements
included in the Singapore Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the
condition (financial or otherwise), earnings, business or
properties of the Company or of the Group, taken as a whole,
whether or not arising from transactions in the ordinary course of
business except as set forth in or contemplated in the Singapore
Prospectus (exclusive of any supplement thereto) and the
representations and warranties of the Company in the Agreement are
true and correct in all material respects on and as of the
[Closing Date/the settlement date for the Option Shares](2) and
the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or
prior to the [Closing Date/settlement date for the Option
Shares](3).
Terms defined and references construed in the Agreement shall bear the same
meanings and construction in this Certificate.
Yours faithfully,
For and on behalf of
CHARTERED SEMICONDUCTOR
MANUFACTURING LTD
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
----------
(1) Closing Date or settlement date for the Option Shares, as appropriate.
(2) Delete as appropriate.
(3) Delete as appropriate.
25
SCHEDULE 3
AUTHORISED SIGNATORIES
The following persons are designated by the Company as authorised signatories:-
Group A
Name Position Held Signature
---- ------------- ---------
1. XXXXX XXXXX President & CEO
2. CHIA SONG HWEE Chief Financial Officer
Either of the signatories shall be authorised to sign all notices and
communications required or permitted to be given by or on behalf of the Company
pursuant to Clause 7 of this Agreement.
26
IN WITNESS WHEREOF this Agreement has been entered into on the
date stated at the beginning.
The Company
SIGNED by /s/ CHIA SONG HWEE )
-------------------------------- )
for and on behalf of )
CHARTERED SEMICONDUCTOR )
MANUFACTURING LTD )
in the presence of:- /s/ XXXXX XXXXX )
The Lead Manager and Underwriter
SIGNED by /s/ XXXXXXX XXX )
-------------------------------- )
for and on behalf of )
OVERSEAS UNION BANK LIMITED )
in the presence of:- /s/ [Signature Illegible] )
The Co-Lead Manager and Underwriter
SIGNED by /s/ LUI XXXXX XXXX )
-------------------------------- )
for and on behalf of )
CITICORP INVESTMENT BANK )
(SINGAPORE) LIMITED )
in the presence of:- /s/ [Signature Illegible] )
