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Exhibit 1.3
DATED [ ] JANUARY, 2000
ST ASSEMBLY TEST SERVICES LTD
AS COMPANY
CITICORP INVESTMENT BANK (SINGAPORE) LIMITED
AS LEAD MANAGER AND UNDERWRITER
- AND -
OVERSEAS UNION BANK 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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C O N T E N T S
CLAUSE HEADING PAGE
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1. DEFINITIONS
2. SINGAPORE RETAIL OFFERING
3. SUBSCRIPTION AND OPTION
4. SINGAPORE PROSPECTUS
5. FEE AND COMMISSION
6. DELIVERY AND PAYMENT
7. WARRANTIES AND UNDERTAKINGS
8. SUB-UNDERWRITING
9. BROKERAGE
10. CONDITIONS
11. RESCISSION AND TERMINATION
12. ANNOUNCEMENTS
13. ADVERTISEMENT
14. CONSENT TO DISCLOSURE
15. TIME OF ESSENCE
16. NOTICES
17. AGREEMENT AMONG MANAGERS
18. SUCCESSORS
19. GOVERNING LAW
SCHEDULE 1 - UNDERWRITING COMMITMENTS
SCHEDULE 2 - FORM OF CERTIFICATE
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THIS AGREEMENT is made on [ ] January, 2000 BETWEEN:-
(1) ST ASSEMBLY TEST SERVICES LTD (the "Company"), a company
incorporated in Singapore with its registered office at 0,
Xxxxxx Xxxxxx 00, Xxxxxxxxx 000000;
(2) CITICORP INVESTMENT BANK (SINGAPORE) LIMITED ("Citicorp" or
the "Lead Manager"), a company incorporated in Singapore with
its registered office at [ ]; and
(3) OVERSEAS UNION BANK LIMITED, a company incorporated in
Singapore with its registered office at [ ] ("OUB" or the
"Co-Lead Manager " and together with the Lead Manager, the
"Managers").
WHEREAS:-
(A) The Company is a company limited by shares incorporated in Singapore on 31st
October, 1994 and has at the date of this Agreement an authorised share capital
of S$300,000,000 consisting of 1,200,000,000 ordinary shares of S$0.25 each, of
which [785,427,695] ordinary shares of S$0.25 each have been issued and are
fully paid as at [15th December, 1999].
(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) [102,000,000] New Shares directly or in the form of
ADSs (as defined below) pursuant to the U.S. Offering
(as defined below);
(ii) [51,000,000] New Shares directly or in the form of
ADSs pursuant to the International Offering (as
defined below); and
(iii) [17,000,000] 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 102,000,000 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
15,300,000 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 51,000,000 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 7,650,000 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 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
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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", representing in aggregate up to 7,500,000 New Shares)
for priority allocation to the Company's directors, officers and employees,
employees of business associates, officers and employees of the Company's
affiliates and to certain charitable organisations in Singapore (the
"Participants") as set out in the Prospectus (defined below) under the heading
"Underwriting", at the Offering Price. Any Directed Shares not orally confirmed
for purchase by any Participant by the end of the business day in Singapore
("Business Day") on which the Underwriting Agreements (as defined below) are
executed will be offered to the other Participants first and any of such
Directed Shares which are not taken up by such Participants shall be offered to
the public by the U.S. Underwriters, the International Underwriters and the
Managers as set out in the Prospectus and 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$0.25 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 Citicorp to lead manage and OUB to co-lead manage,
and Citicorp and OUB 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, severally
and not jointly, to subscribe for, or procure subscription for, the Invitation
Shares (as defined below), upon the terms and subject to the conditions of this
Agreement.
IT IS AGREED 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 27th January, 2000 made among the
International Underwriters, the Managers and the U.S.
Underwriters;
"Closing Date" means 8th February, 2000 (or such
later or other date provided in Clause 6(C));
"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;
"Global Offering" means the International Offering,
the U.S. Offering and the
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Singapore Retail Offering;
"Group" means the Company and its subsidiary;
"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 27th January, 2000
entered into between the Company and the
International Underwriters, relating to the
International Offering;
"Invitation Shares" means Offer Shares and the
Singapore Directed Shares;
"market day" means a day on which the Stock Exchange
is open for securities trading;
"NASDAQ" means the Nasdaq National Market;
"New Shares" means 170,000,000 new ordinary shares of
S$0.25 each in the capital of the Company;
"Offer Shares" means 17,000,000 of the New Shares
offered by way of a public offering in Singapore;
"Offering Price" means U.S.$[ ] for each ADS and
S$[ ] for each Share;
"Option Shares" has the meaning set out in Clause
3(B);
"Prospectus" means the International Prospectus, the
U.S. Prospectus and the Singapore Prospectus or any
of them;
"Shares" means ordinary shares of S$0.25 each in the
capital of the Company;
"Singapore Directed Shares" means the Directed Shares
to be allocated to Participants in Singapore;
"Singapore Dollar(s)" and the symbol "S$" mean the
lawful currency of Singapore;
"Singapore Prospectus" means the prospectus in the
agreed form and relating to the Singapore Retail
Offering;
"Singapore Retail Offering" means the offering of the
Invitation Shares to persons 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
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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 27th January, 2000 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 Citicorp with such alterations (if any) as may be
agreed between the Company and Citicorp;
(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.
(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:-
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(i) the Company irrevocably appoints Citicorp, and
Citicorp agrees, to lead manage the Singapore Retail
Offering; and
(ii) the Company irrevocably appoints OUB, and OUB agrees,
to co-lead manage the Singapore Retail Offering.
(B) The Company authorises and directs Citicorp 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 send 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, severally and not jointly and
each in the proportion borne by its Underwriting Commitment to the Total
Underwriting Commitments, to subscribe or procure subscriptions for up to
2,550,000 Shares at the Offering Price, to cover over-allotments in the
Singapore Retail Offering (the "Option Shares"). 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 Citicorp, 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$0.25 each in
the capital of the Company.
4. SINGAPORE PROSPECTUS
Subject to the terms and conditions of this Agreement, not
later than [ ] January, 2000 (or such other date as the Company and Citicorp may
agree), the Company undertakes to procure:-
(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
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(A) In consideration of the agreement by Citicorp to manage the Invitation
contained in Clause 2, the Company agrees to pay to Citicorp a management fee in
the amount and on the terms as stated in a letter dated 8th December, 1999 from
Citicorp 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 1.25 per cent. of the Offering Price for the total
number of Invitation Shares and the Option Shares (to the extent the option set
out in Clause 3(B) 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 Invitation
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, valuers' fees, receiving
bankers' fees, accountancy fees, legal fees, the listing fees, other incidental
fees payable to the Stock Exchange for the listing application, any stamp,
issue, registration or documentary taxes and duties arising as a result of the
issuance of the New Shares, of the sale and delivery of the New Shares by the
Company to or for the account of the Managers and of the sale and delivery of
the New Shares by the Managers to the initial purchasers thereof in the manner
contemplated under this Agreement. The Company shall forthwith upon request by
Citicorp reimburse the amount of any such expenses which the Managers may have
paid on its behalf. The Company shall reimburse the Managers for all reasonable
out-of-pocket expenses incurred by them in connection with this Agreement, as
agreed in a letter dated 8th December, 1999 from the Managers to the Company.
(D) Any goods and services tax or other levies now or hereafter imposed by law
(including but not limited to the Goods and Services Tax Act, Chapter 117A of
Singapore) 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) Subject to Clause 6(C), 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 third 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 third Business Day prior to the Closing Date) shall be issued in
the name of, and delivered to, the Depository for the account of the Managers or
such other persons as Citicorp, 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 [(in the case of Citicorp only) the
management fee payable to Citicorp pursuant to Clause 5(A) and] the underwriting
commission and brokerage payable to the Managers pursuant to Clause 5(B) and
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
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Brothers International Limited shall have notified to Citicorp, on behalf of the
Company, for such purpose.
(C) Notwithstanding Section 6(A), it is understood and agreed that the Closing
Date shall occur simultaneously with the "Closing Date" under the International
Underwriting Agreement and the U.S. Underwriting Agreement and that the
settlement date for any Singapore Option Securities 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 Securities and International Option Securities occurring after the
Closing Date.
(D) If the option provided for in Clause 3(B) is exercised after the third
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 three 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 Citicorp, 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 and brokerage payable to the Managers pursuant to Clause 5(B) and
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 Citicorp, on behalf of the
Company, for such purpose.
(E) If settlement for the Option Shares is to occur after the Closing Date, the
Company will deliver to the Managers on the settlement date for the Option
Shares, and the several obligations of the Managers to subscribe or procure
subscriptions for the Option Shares shall be conditional 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 hereof.
7. WARRANTIES AND UNDERTAKINGS
(A) The Company warrants to and undertakes with each of the Managers as
follows:-
[to track warranties from U.S. Underwriting Agreement]
(B) The obligations of Citicorp under Clause 2 and the obligations of the
Managers under Clauses 3 and 6 are made on the basis of the warranties contained
in sub-Clause (A) above and are subject to the same being and remaining true and
accurate in all respects as at the date hereof and 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 or,
as the case may be, the settlement date for the
Option Shares; and
(ii) to forthwith give notice to Citicorp of any Specified
Event which has occurred or come to its knowledge
prior to the Closing Date or, as the case may be, the
settlement date for the Option Shares, and forthwith
to take such steps as
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Citicorp may reasonably require to remedy and/or
publicise the same without prejudice to Citicorp's
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.
(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 and under sub-Clause (C) above 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 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 it 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 their 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;
(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 Invitation 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
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pursuant to the exercise of options granted under the
ST Assembly Test Services 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
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 Invitation.
8. SUB-UNDERWRITING
Citicorp shall be at liberty to sub-underwrite its
underwriting obligations under this Agreement upon such terms and conditions as
it deems fit. OUB shall not sub-underwrite its underwriting obligations under
this Agreement without the prior written consent of Citicorp.
9. BROKERAGE
The Company will pay brokerage at the rate of 1.0 per cent. of
the Offering Price of the Invitation Shares and (in the event the option
provided for in Clause 3(B) is exercised) the Option Shares to Citicorp 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 [28th
January,] 2000;
(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 [ ], 2000 (or such other
date as the Company and the Managers may agree);
(iii) the delivery to Citicorp on the Closing Date of a
certificate in the form set out in Schedule 2 signed
by [the Chief Executive Officer or President of the
Company];
(iv) the International Underwriting Agreement and the U.S.
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
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Shares) pursuant to the International Underwriting
Agreement and the U.S. Underwriting Agreement taking
place [concurrently] 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 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 6
and shall reimburse the Managers for all out-of-pocket expenses incurred by it
in connection with this Agreement, 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, in their
absolute discretion, by notice in writing to the Company, rescind or terminate
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 in any material respect of any of the
warranties, undertakings or covenants contained in
Clause 7(A) or 7(D) or that any of the warranties by
the Company in Clause 7(A) is untrue or incorrect in
any material respect; or
(ii) any Specified Event comes to the knowledge of the
Managers; or
(iii) [track Section 10 of U.S. Underwriting Agreement.]
(B) If this Agreement is so rescinded or terminated, the Company shall reimburse
the Managers for all out-of-pocket expenses incurred by them in connection with
this Agreement.
(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, 6 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 Citicorp (save as may be required by law or the
rules of the Stock Exchange).
13. ADVERTISEMENT
The Company and Citicorp agree that tombstone advertisements
of the Invitation shall be made by Citicorp on behalf of and at the expense of
the Company on such dates and in such newspapers as Citicorp may, in
consultation with the Company, determine.
14. CONSENT TO DISCLOSURE
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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 Invitation.
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. NOTICES
Any notice or other communication shall be in writing
addressed to the office of the party receiving such notice or other
communication as set out below and shall be delivered by hand or sent by fax,
telex or prepaid registered post:-
the Company : ST Assembly Test Services Ltd
0, Xxxxxx Xxxxxx 00,
Xxxxxxxxx 000000.
Attention : [ ]
Fax number : [ ]
Telex number : [ ]
Citicorp : Citicorp Investment Bank (Singapore) Limited
0, Xxxxxxx Xxxxxx, #00-00,
Xxxxxxxxxx Xxxxx,
Xxxxxxxxx 000000.
Attention : [ ]
Fax number : [ ]
Telex number : [ ]
OUB : Overseas Union Bank Limited
0, Xxxxxxx Xxxxx,
XXX Xxxxxx, Xxxxxxxxx
000000.
Attention : [ ]
Fax number : [ ]
Telex number : [ ]
Any notice sent by fax or telex shall be deemed to have been received
immediately and any notice sent by letter shall be deemed to have been received
48 hours after the time of posting.
18. AGREEMENT AMONG MANAGERS
(A) OUB hereby confirms its authorisation of Citicorp to act as the
representative of the Managers in Singapore in offering the Invitation Shares to
such persons and in such amounts as Citicorp may in its sole discretion select,
including to members of any selling group, if any, selected by Citicorp, on the
terms and conditions of this Agreement and related documentation.
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(B) In making or giving any such notice, decision, approval, consent or waiver,
Citicorp is hereby irrevocably authorised by OUB to exercise its sole
discretion, and Citicorp shall not be under any obligation to account or
disclose to OUB its reason(s) for so doing.
(C) OUB hereby authorises Citicorp as its agent to execute and deliver the
Agreement Among U.S. Underwriters, International Underwriters and Singapore
Underwriters to be made between the U.S. Underwriters and International
Underwriters named therein and the Managers (the "Agreement Among Underwriters")
in its name and on its behalf of, and to agree to any variation of its terms
(except as to the purchase price) that, in the judgment of Citicorp, is not a
material variation. OUB also authorises Citicorp to exercise all the authority
and discretion vested in the Managers or in the Singapore Representative by this
Agreement (including in respect of the Option Shares) and the Agreement Among
Underwriters and to take all such action as Citicorp may in its discretion
believe necessary or desirable to carry out the provisions of this Agreement or
the Agreement Among Underwriters and to effect the sale and distribution of the
Invitation Shares, including without prejudice to the generality of the
foregoing, the right to determine the terms of any proposed offering, the
concession to dealers and the reallowance, if any, and to make the judgments
provided for in Clauses [10] and [11] of this Agreement and in respect of the
Option Shares, and further authorises Citicorp 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 OUB has applied or procured applications for
pursuant to Clause 5; and
(ii) arranging for delivery to the Depository of the
Invitation Shares for which OUB has applied or
procured applications for pursuant to Clause 5.
(D) OUB hereby authorises the Managers to publish its name, in the form in which
it appears in this Agreement, in any publications relating to the Singapore
Retail Offering.
(E) In acting under this Agreement, the Managers shall be entitled to rely on
any communication or document believed by it 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 it.
(F) 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.
(G) 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.
(H) No Manager shall 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
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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.
(I) No Manager shall 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, no manager shall have any responsibility or
liability to the other Manager on account of any loss such 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 such other Manager.
(J) Citicorp may, without any liability to account to OUB, 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.
(K) Each Manager shall contribute (in the proportion in which its Underwriting
Commitment bears to the Total Underwriting Commitments) in reimbursement of 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.
(L) It is understood, for the avoidance of doubt, that the Managers may
separately agree to any amendment, modification or variation any of their rights
against, or obligations to, each other set in this Clause, provided that any
such amendment, modification or variation shall not affect any of the rights or
obligations of the Company under 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.
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SCHEDULE 1
UNDERWRITING COMMITMENTS
Name of Manager Number of
---------------
Invitation Shares
-----------------
1. Citicorp Investment Bank (Singapore) Limited [ ]
2. Overseas Union Bank Limited [ ]
-------------------
Total Underwriting Commitments [ ]
===================
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SCHEDULE 2
FORM OF CERTIFICATE
To: Citicorp Investment Bank (Singapore) Limited,
0, Xxxxxxx Xxx, #00-00/00,
XXX Xxxxxxxx,
Xxxxxxxxx 000000. [8th] February, 2000
Dear Sirs,
I, [ ], the [Chief Executive Officer]/[President] of ST
Assembly Test Services Ltd (the "Company"), refer to the Management and
Underwriting Agreement (the "Agreement") dated [ ]th January, 2000 made between
(1) the Company, as Company, (2) Citicorp Investment Bank (Singapore) Limited,
as Lead Manager and Underwriter for the Singapore Retail Offering, and (3)
Overseas Union Bank 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), prospects,
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 the
business of the Company or the Group, 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/settlement
date for the Option Shares]1 with the same effect as
if made on the [Closing Date/settlement date for the
Option Shares]1 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](1).
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
ST ASSEMBLY TEST SERVICES LTD
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
IN WITNESS WHEREOF this Agreement has been entered into on the
date stated at the beginning.
----------------------------
(1) Delete as appropriate.
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The Company
SIGNED by )
--------------------------------
for and on behalf of )
ST ASSEMBLY TEST SERVICES LTD )
in the presence of:- )
The Lead Manager and Underwriter
SIGNED by )
---------------------------------
for and on behalf of )
CITICORP INVESTMENT BANK )
(SINGAPORE) LIMITED )
in the presence of:- )
The Co-Lead Manager and Underwriter
SIGNED by )
--------------------------------
for and on behalf of )
OVERSEAS UNION BANK LIMITED )
in the presence of:- )
