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EXHIBIT 1.2
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JABIL CIRCUIT, INC.
(a Delaware Corporation)
1,500,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: March 4, 1999
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Table of Contents
PAGE
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SECTION 1. REPRESENTATIONS AND WARRANTIES.........................................................................4
(a) Representations and Warranties by the Company............................................................4
(i) Compliance with Registration Requirements.......................................................4
(ii) Incorporated Documents..........................................................................5
(iii) Independent Accountants.........................................................................5
(iv) Financial Statements............................................................................5
(v) No Material Adverse Change in Business..........................................................5
(vi) Good Standing of the Company....................................................................6
(vii) Good Standing of Subsidiaries...................................................................6
(vii) Capitalization..................................................................................6
(viii) Authorization of Agreement......................................................................6
(ix) Authorization and Description of Securities.....................................................7
(x) Absence of Defaults and Conflicts...............................................................7
(xi) Absence of Labor Dispute........................................................................7
(xii) Absence of Proceedings..........................................................................8
(xiii) Accuracy of Exhibits............................................................................8
(xiv) Possession of Intellectual Property.............................................................8
(xv) Absence of Further Requirements.................................................................8
(xvi) Possession of Licenses and Permits..............................................................9
(xvii) Title to Property...............................................................................9
(xviii) Investment Company Act..........................................................................9
(xix) Environmental Laws..............................................................................9
(xx) Registration Rights............................................................................10
(xxii) Absence of Year 2000 Problem...................................................................10
(b) Representations and Warranties by the Selling Shareholders..............................................10
(i) Accurate Disclosure............................................................................10
(ii) Authorization of Agreements....................................................................11
(iii) Good and Marketable Title......................................................................11
(iv) Due Execution of the International Power of Attorney and Custody Agreement.....................11
(v) Absence of Manipulation........................................................................12
(vi) Absence of Further Requirements................................................................12
(vii) Restriction on Sale of Securities..............................................................12
(viii) Certificates Suitable for Transfer.............................................................12
(ix) No Association with NASD.......................................................................13
(c) Officer's Certificates..................................................................................13
SECTION 2. SALE AND DELIVERY TO INTERNATIONAL MANAGERS; CLOSING..................................................13
(a) Initial Securities......................................................................................12
(b) Option Securities.......................................................................................13
(c) Payment.................................................................................................13
(d) Denominations; Registration.............................................................................14
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SECTION 3. COVENANTS OF THE COMPANY..............................................................................14
(a) Compliance with Securities Regulations and Commission Requests..........................................14
(b) Filing of Amendments. ..................................................................................15
(c) Delivery of Registration Statements.....................................................................15
(d) Delivery of Prospectuses................................................................................15
(e) Continued Compliance with Securities Laws...............................................................15
(f) Blue Sky Qualifications.................................................................................16
(g) Rule 158................................................................................................16
(h) Use of Proceeds.........................................................................................16
(i) Listing.................................................................................................16
(j) Restriction on Sale of Securities.......................................................................16
(k) Reporting Requirements..................................................................................17
SECTION 4. PAYMENT OF EXPENSES. .................................................................................17
(a) Expenses................................................................................................17
(b) Expenses of the Selling Shareholders....................................................................17
(c) Termination of Agreement................................................................................18
(d) Allocation of Expenses..................................................................................18
SECTION 5. CONDITIONS OF INTERNATIONAL MANAGERS' OBLIGATIONS.....................................................18
(a) Effectiveness of Registration Statement.................................................................18
(b) Opinion of Counsel for Company..........................................................................18
(c) Opinion of Counsel for the Selling Shareholders.........................................................18
(d) Opinion of Counsel for Non-U.S. Subsidiaries............................................................18
(e) [Opinion of Patent Counsel for Company.]................................................................19
(f) Opinion of Counsel for the Underwriters.................................................................19
(g) Officers' Certificate...................................................................................19
(h) Certificate of Selling Shareholders.....................................................................20
(i) Accountant's Comfort Letter.............................................................................20
(j) Bring-down Comfort Letter...............................................................................20
(k) Approval of Listing.....................................................................................20
(l) No Objection............................................................................................20
(m) Lock-up Agreements......................................................................................20
(n) Purchase of Initial U.S. Securities. ...................................................................20
(o) Conditions to Purchase of International Option Securities...............................................21
(i) Officers' Certificate..........................................................................21
(ii) Certificate of Selling Shareholders. ..........................................................21
(iii) Opinion of Counsel for Company.................................................................21
(iv) Opinion of Counsel for the Selling Shareholders................................................21
(v) Opinion of Counsel for the Company's Non-U.S. Subsidiaries.....................................21
(vi) Opinion of Patent Counsel for the Company......................................................21
(vii) Opinion of Counsel for the Underwriters. ......................................................21
(viii) Bring-down Comfort Letter. ....................................................................22
(p) Additional Documents....................................................................................22
(q) Termination of Agreement................................................................................22
SECTION 6. INDEMNIFICATION. .....................................................................................22
(a) Indemnification of International Managers...............................................................22
(b) Indemnification of Company, Directors and Officers and Selling Shareholders.............................23
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(c) Actions against Parties; Notification.. ................................................................24
(d) Settlement without Consent if Failure to Reimburse......................................................24
(e) Limitation on Indemnification by Selling Shareholders.........................ERROR! BOOKMARK NOT DEFINED.
(f) Other Agreements with Respect to Indemnification........................................................24
SECTION 7. CONTRIBUTION..........................................................................................25
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY........................................26
SECTION 9. TERMINATION OF AGREEMENT. ............................................................................26
(a) Termination; General....................................................................................26
(b) Liabilities.............................................................................................26
SECTION 10. DEFAULT BY ONE OR MORE OF THE INTERNATIONAL MANAGERS.................................................27
SECTION 11. DEFAULT BY ONE OR MORE OF THE SELLING SHAREHOLDERS OR THE COMPANY. ..................................27
SECTION 12. NOTICES. ............................................................................................28
SECTION 13. PARTIES..............................................................................................28
SECTION 15. EFFECT OF HEADINGS...................................................................................28
SCHEDULES
Schedule A - List of International Managers...............................................Sch A-1
Schedule B - List of Selling Shareholders.................................................Sch B-1
Schedule C - Pricing Information..........................................................Sch C-1
Schedule D - List of Subsidiaries.........................................................Sch D-1
Schedule E - List of Persons subject to Lock-up...........................................Sch E-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel..............................................A-1
Exhibit B - Form of Opinion of Selling Shareholder's Counsel..................................B-1
Exhibit C - Form of Opinion of Non-U.S. Subsidiaries' Counsel.................................C-1
Exhibit D - Form of Opinion of Patent Counsel.................................................D-1
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JABIL CIRCUIT, INC.
(a Delaware corporation)
1,500,000 Shares of Common Stock
(Par Value $.001 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
Dated: March 4, 1999
Xxxxxxx Xxxxx International
Xxxxxxxxx, Lufkin & Xxxxxxxx International
Salomon Brothers International Limited
X.X. Xxxxxxxxx, Xxxxxx
Xxxxxx Xxxxxx Partners LLC
the International Managers
c/o Merrill Xxxxx International
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
Jabil Circuit, Inc., a Delaware corporation (the "Company"), and the persons
listed on Schedule B hereto (the "Selling Shareholders"), confirm their
respective agreements with Xxxxxxx Xxxxx International ("Xxxxxxx Xxxxx") and
Xxxxxxxxx, Xxxxxx & Xxxxxxxx International, Salomon Brothers International
Limited, X.X. Xxxxxxxxx, Towbin and Xxxxxx Xxxxxx Partners LLC, (collectively,
the "International Managers", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), with respect to (i)
the sale by the Company and the Selling Shareholders, acting severally and not
jointly, and the purchase by the International Managers, acting severally and
not jointly, of the respective numbers of shares of Common Stock, par value
$.001 per share, of the Company ("Common Stock") set forth in Schedules A and B
hereto, and (ii) the grant by the Company and the Selling Shareholders to the
International Managers, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of 225,000
additional shares of Common Stock to cover
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over-allotments, if any. The aforesaid 1,500,000 shares of Common Stock (the
"Initial International Securities") to be purchased by the International
Managers and all or any part of the 225,000 shares of Common Stock subject to
the option described in Section 2(b) hereof (the "International Option
Securities") are hereinafter called, collectively, the "International
Securities".
It is understood that the Company and the Selling Shareholders are
concurrently entering into an agreement dated the date hereof (the "U.S.
Purchase Agreement") providing for the sale by the Company of an aggregate of
9,000,000 shares of Common Stock (the "Initial U.S. Securities") through
arrangements with certain underwriters in the United States and Canada (the
"U.S. Underwriters") for whom Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, Xxxxxxx Xxxxx Barney
Inc., X.X. Xxxxxxxxx, Towbin and Xxxxxx Xxxxxx Partners LLC are acting as
representatives (the "U.S. Representatives") and the grant by the Company and
the Selling Shareholders to the U.S. Underwriters, acting severally and not
jointly, of an option to purchase all or any part of the U.S. Underwriters' pro
rata portion of up to 1,350,000 additional shares of Common Stock solely to
cover over-allotments, if any (the "U.S. Option Securities" and, together with
the International Option Securities, the "Option Securities"). The Initial U.S.
Securities and the U.S. Option Securities are hereinafter called the "U.S.
Securities". It is understood that the Company and the Selling Shareholder are
not obligated to sell and the International Managers are not obligated to
purchase, any Initial International Securities unless all of the Initial U.S.
Securities are contemporaneously purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities", and the International Securities, and the U.S. Securities are
hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the Underwriters under the
direction of Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (in such capacity, the "Global Coordinator").
The Company and the Selling Shareholders understand that the
International Managers propose to make a public offering of the International
Securities as soon as they deem advisable after this Agreement has been executed
and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-71479) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the
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provisions of Rule 434 and Rule 424(b). Two forms of prospectus are to be used
in connection with the offering and sale of the Securities: One relating to the
International Securities (the "Form of International Prospectus") and one
relating to the U.S. Securities (the "Form of U.S. Prospectus"). The Form of
International Prospectus is identical to the Form of U.S. Prospectus, except for
the front cover and back cover pages and the information under the caption
"Underwriting." The information included in any such prospectus or in any such
Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information." Each Form of
International Prospectus and Form of U.S. Prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information, that was used
after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final Form of
International Prospectus and the final Form of U.S. Prospectus, including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the forms first furnished to the Underwriters for use in
connection with the offering of the Securities are herein called the
"International Prospectus" and the "U.S. Prospectus," respectively, and
collectively, the "Prospectuses." If Rule 434 is relied on, the terms
"International Prospectus" and "U.S. Prospectus" shall refer to the preliminary
International Prospectus dated January 29, 1999 and preliminary U.S. Prospectus
dated January 29, 1999, respectively, each together with the applicable Term
Sheet and all references in this Agreement to the date of such Prospectuses
shall mean the date of the applicable Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the International Prospectus, the U.S. Prospectus or any Term Sheet
or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of
International Prospectus and Form of U.S. Prospectus) or the Prospectuses (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus
(including the Form of International Prospectus and Form of U.S. Prospectus) or
the Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
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incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
Section 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each International Manager as of the date hereof, as
of the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each
International Manager, as follows:
(i) Compliance with Registration Requirements. The
Company meets the requirements for use of Form S-3 under the 1933 Act.
Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any International
Option Securities are purchased, at the Date of Delivery), the
Registration Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither of the Prospectuses nor any amendments or supplements thereto
(including any prospectus wrapper), at the time the Prospectuses or any
amendments or supplements thereto were issued and at the Closing Time
(and, if any International Option Securities are purchased, at the Date
of Delivery), included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Company will comply with the requirements of Rule 434 and
the Prospectuses shall not be "materially different", as such term is
used in Rule 434, from the prospectuses included in the Registration
Statement at the time it became effective. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or the International
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any International Manager or by
any U.S. Underwriter through the U.S. Representatives expressly for use
in the Registration Statement or the International Prospectus.
Each preliminary prospectus and the prospectuses filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the
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1933 Act Regulations and each preliminary prospectus and the
Prospectuses delivered to the Underwriters for use in connection with
this offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement
and the Prospectuses, at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), as applicable, and,
when read together with the other information in the Prospectuses, at
the time the Registration Statement became effective, at the time the
Prospectuses were issued and at the Closing Time (and, if any
International Option Securities are purchased, at the Date of
Delivery), did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(iii) Independent Accountants. The accountants who
certified the financial statements and supporting schedules included in
the Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements
included in the Registration Statement and the Prospectuses, together
with the related schedules and notes, present fairly the financial
position of the Company and its consolidated subsidiaries at the dates
indicated and the statement of operations, stockholders' equity and
cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectuses present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration
Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein, (A)
there has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business
(a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one
enterprise, and (C) there has been no dividend or
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distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(vi) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectuses and to enter into
and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, all of the issued and outstanding capital stock
of each such Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
such Subsidiary. The only subsidiaries of the Company are the
subsidiaries listed on Schedule D hereto.
(viii) Capitalization. The authorized, issued and
outstanding capital stock of the Company is as set forth in the
Prospectuses in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances, if any, pursuant to
this Agreement, pursuant to reservations, agreements or employee
benefit plans referred to in the Prospectuses or pursuant to the
exercise of convertible securities or options referred to in the
Prospectuses). The shares of issued and outstanding capital stock of
the Company, including the Securities to be purchased by the
International Managers from the Selling Shareholders, have been duly
authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock of the Company,
including the Securities to be purchased by the International Managers
from the Selling Shareholders, was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company.
(ix) Authorization of Agreement. This Agreement and the
U.S. Purchase Agreement have been duly authorized, executed and
delivered by the Company.
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(x) Authorization and Description of Securities. The
Securities to be purchased by the International Managers and the U.S.
Underwriters from the Company have been duly authorized for issuance
and sale to the International Managers pursuant to this Agreement and
the U.S. Underwriters pursuant to the U.S. Purchase Agreement,
respectively, and, when issued and delivered by the Company pursuant to
this Agreement and the U.S. Purchase Agreement, respectively, against
payment of the consideration set forth herein and the U.S. Purchase
Agreement, respectively, will be validly issued, fully paid and
non-assessable; the Common Stock conforms to all statements relating
thereto contained in the Prospectuses and such description conforms to
the rights set forth in the instruments defining the same; no holder of
the Securities will be subject to personal liability by reason of being
such a holder; and the issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the
Company.
(xi) Absence of Defaults and Conflicts. Neither the
Company nor any of its subsidiaries is in violation of its charter or
by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any
subsidiary is subject (collectively, "Agreements and Instruments")
except for such defaults that would not result in a Material Adverse
Effect; and the execution, delivery and performance of this Agreement
and the U.S. Purchase Agreement and the consummation of the
transactions contemplated in this Agreement, the U.S. Purchase
Agreement (including the issuance and sale of the Securities) and
compliance by the Company with its obligations under this Agreement and
the U.S. Purchase Agreement have been duly authorized by all necessary
corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action
result in any violation of the provisions of the charter or by-laws of
the Company or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any subsidiary or any of their assets,
properties or operations. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or
other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any subsidiary.
(xii) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the
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employees of any of its or any subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(xiii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
might reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to affect the properties or assets
thereof in a manner which would result in a Material Adverse Effect or
which might reasonably be expected to materially and adversely affect
the consummation of the transactions contemplated in this Agreement and
the U.S. Purchase Agreement or the performance by the Company of its
obligations hereunder or thereunder; the aggregate of all pending legal
or governmental proceedings to which the Company or any subsidiary is a
party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(xiv) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statement, the Prospectuses or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described and filed as required.
(xv) Possession of Intellectual Property. The Company and
its subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, and which infringement or conflict (if the
subject of any unfavorable decision, ruling or finding) or invalidity
or inadequacy, singly or in the aggregate, would result in a Material
Adverse Effect.
(xvi) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities under this Agreement and the U.S. Purchase
Agreement or the consummation of the transactions contemplated by this
Agreement and the U.S. Purchase
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Agreement, except such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations and foreign or
state securities or blue sky laws.
(xvii) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses") issued
by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure
so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a Material Adverse Effect; and neither
the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Prospectuses or (b) do
not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company or any of its subsidiaries; and all of
the leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in the
Prospectuses, are in full force and effect, and neither the Company nor
any subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any
subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary
to the continued possession of the leased or subleased premises under
any such lease or sublease that would reasonably be expected to have a
Material Adverse Effect.
(xix) Investment Company Act. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectuses will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(xx) Environmental Laws. Except as described in the
Registration Statement and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
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human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
or petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(xxi) Registration Rights. Except for such rights as have
been duly waived or are described in the Prospectuses, there are no
persons with registration rights or other similar rights to have any
securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
(xxii) Absence of Year 2000 Problem. Except as otherwise
disclosed in the Registration Statement and the Prospectuses and as
would not result in a Material Adverse Effect, the Company is not aware
that any specific computer system or program used by the Company or any
of its customers, suppliers or service providers will fail to operate
with dates after December 31, 1999.
(b) Representations and Warranties by the Selling Shareholders.
Each Selling Shareholder represents and warrants, severally and not jointly, to
each International Manager as of the date hereof, as of the Closing Time, and,
if the Selling Shareholder is selling International Option Securities on a Date
of Delivery, as of each such Date of Delivery, and agrees with each
International Manager, as follows:
(i) Accurate Disclosure. To the best knowledge of such
Selling Shareholder, the representations and warranties of the Company
contained in Section 1(a) hereof are true and correct; such Selling
Shareholder has reviewed and is familiar with the Registration
Statement and the Prospectuses and neither the Prospectuses nor any
amendments or supplements thereto includes any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; such Selling Shareholder is not
prompted to sell the Securities to be sold by such Selling Shareholder
hereunder by any information concerning the Company or any subsidiary
of the Company which is not set forth in the Prospectuses.
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(ii) Authorization of Agreements. Each Selling Shareholder
has the full right, power and authority to enter into this Agreement,
the U.S. Purchase Agreement, an International Power of Attorney and
Custody Agreement (the "International Power of Attorney and Custody
Agreement") and a U.S. Power of Attorney and Custody Agreement (the
"U.S. Power of Attorney and Custody Agreement")and to sell, transfer
and deliver the Securities to be sold by such Selling Shareholder
hereunder and under the U.S. Purchase Agreement. The execution and
delivery of this Agreement, the U.S. Purchase Agreement, the
International Power of Attorney and Custody Agreement and the U.S.
Power of Attorney and Custody Agreement and the sale and delivery of
the Securities to be sold by such Selling Shareholder and the
consummation of the transactions contemplated herein and in the U.S.
Purchase Agreement and compliance by such Selling Shareholder with its
obligations hereunder and under the U.S. Purchase Agreement have been
duly authorized by such Selling Shareholder and do not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Securities to be sold by such Selling Shareholder
or any property or assets of such Selling Shareholder pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other agreement or instrument to which such
Selling Shareholder is a party or by which such Selling Shareholder may
be bound, or to which any of the property or assets of such Selling
Shareholder is subject, nor will such action result in any violation of
the provisions of the charter or by-laws or other organizational
instrument of such Selling Shareholder, if applicable, or any
applicable treaty, law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over such Selling Shareholder
or any of its properties.
(iii) Good and Marketable Title. Such Selling Shareholder
has and will at the Closing Time and, if any International Option
Securities are purchased, on the Date of Delivery have good and
marketable title to the Securities to be sold by such Selling
Shareholder hereunder, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any
kind, other than pursuant to this Agreement and the U.S. Purchase
Agreement; and upon delivery of such Securities and payment of the
purchase price therefor as contemplated herein and in the U.S. Purchase
Agreement, assuming each such International Manager or U.S. Underwriter
has no notice of any adverse claim, each of the International Managers
and U.S. Underwriters will receive good and marketable title to the
Securities purchased by it from such Selling Shareholder, free and
clear of any security interest, mortgage, pledge, lien, charge, claim,
equity or encumbrance of any kind.
(iv) Due Execution of the International Power of Attorney
and Custody Agreement. Such Selling Shareholder has duly executed and
delivered, in the form heretofore furnished to the International
Managers, the International Power of Attorney and Custody Agreement
with [!] as attorney-in-fact (the "Attorney-in-Fact") and [the
First National Bank of New York] , as custodian (the "Custodian"); the
Custodian is authorized to deliver the Securities to be sold by such
Selling Shareholder hereunder and
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to accept payment therefor; and the Attorney-in-Fact is authorized to
execute and deliver this Agreement and the certificate referred to in
Section 5(h) or that may be required pursuant to Sections 5(o) and 5(p)
on behalf of such Selling Shareholder, to sell, assign and transfer to
the International Managers the Securities to be sold by such Selling
Shareholder hereunder, to determine the purchase price to be paid by
the International Managers to such Selling Shareholder, as provided in
Section 2(a) hereof, to authorize the delivery of the Securities to be
sold by such Selling Shareholder hereunder, to accept payment therefor,
and otherwise to act on behalf of such Selling Shareholder in
connection with this Agreement.
(v) Absence of Manipulation. Such Selling Shareholder has
not taken, and will not take, directly or indirectly, any action which
is designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
(vi) Absence of Further Requirements. No filing with, or
consent, approval, authorization, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the performance by each Selling
Shareholder of its obligations hereunder or in the International Power
of Attorney and Custody Agreement, or in connection with the sale and
delivery of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as may have
previously been made or obtained or as may be required under the 1933
Act or the 1933 Act Regulations or state securities laws.
(vii) Restriction on Sale of Securities. During a period of
90 days from the date of the Prospectuses, such Selling Shareholder
will not, without the prior written consent of Xxxxxxx Xxxxx, (i)
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or
file any registration statement under the 1933 Act with respect to any
of the foregoing or (ii) enter into any swap or any other agreement or
any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not
apply to the Securities to be sold hereunder or under the U.S. Purchase
Agreement.
(viii) Certificates Suitable for Transfer. Certificates for
all of the Securities to be sold by such Selling Shareholder pursuant
to this Agreement and the U.S. Purchase Agreement, in suitable form for
transfer by delivery or accompanied by duly executed instruments of
transfer or assignment in blank with signatures guaranteed, have been
placed in custody with the Custodian with irrevocable conditional
instructions to deliver such Securities to the International Managers
and Underwriters pursuant to this Agreement and the U.S. Purchase
Agreement.
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(ix) No Association with NASD. Neither such Selling
Stockholder nor any of his affiliates directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, or has any other association with (within the
meaning of Article I, Section 1(m) of the By-laws of the National
Association of Securities Dealers, Inc.), any member firm of the
National Association of Securities Dealers, Inc.
(c) Officer's Certificates. Any certificate signed by any officer
of the Company or any of its subsidiaries delivered to the Global Coordinator or
to counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each International Manager as to the matters covered thereby; and
any certificate signed by or on behalf of the Selling Shareholders as such and
delivered to the Global Coordinator or to counsel for the Underwriters shall be
deemed a representation and warranty by such Selling Shareholder to each
International Manager as to the matters covered thereby.
Section 2. Sale and Delivery to International Managers; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company and each Selling Shareholder, severally and not jointly,
agrees to sell to each International Manager, severally and not jointly, and
each International Manager, severally and not jointly, agrees to purchase from
the Company and each Selling Shareholder, at the price per share set forth in
Schedule C, the number of Initial International Securities set forth in Schedule
B opposite the name of the Company or such Selling Shareholder, as the case may
be, which the number of Initial International Securities set forth in Schedule A
opposite the name of such International Manager, plus any additional number of
Initial International Securities which such International Manager may become
obligated to purchase pursuant to the provisions of Section 10 hereof, bears to
the total number of Initial International Securities , subject, in each case to
adjustments among the International Managers in their sole discretion shall make
to eliminate any sales or purchases of fractional securities.
(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company and the Selling Shareholders, acting
severally and not jointly, hereby grant an option to the International Managers,
acting severally and not jointly, to purchase up to an additional 225,000 shares
of Common Stock, as set forth in Schedule B, at the price per share set forth in
Schedule C, less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial International Securities but
not payable on the International Option Securities. The option hereby granted
will expire 30 days after the date hereof and may be exercised in whole or in
part from time to time only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of the Initial
International Securities upon notice by the Global Coordinator to the Company
and the Selling Shareholders setting forth the number of International Option
Securities as to which the several International Managers are then exercising
the option and the time and date of payment and delivery for such International
Option Securities. Any such time and date of delivery for the International
Option Securities (a "Date of Delivery") shall be determined by the Global
Coordinator, but shall not be later than
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seven full business days after the exercise of said option, nor in any event
prior to the Closing Time, as hereinafter defined. If the option is exercised as
to all or any portion of the International Option Securities, each of the
International Managers, acting severally and not jointly, will purchase, on a
pro rata basis, that proportion of the total number of International Option
Securities then being purchased from the Company and each Selling Shareholder,
as set forth in Schedule B, which the number of Initial International Securities
set forth in Schedule A opposite the name of such International Manager bears to
the total number of Initial International Securities, subject in each case to
such adjustments as the Global Coordinator in its discretion shall make to
eliminate any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Xxxxx &
Xxxx LLP, or at such other place as shall be agreed upon by the Global
Coordinator and the Company and the Selling Shareholders, at 9:00 A.M. (Eastern
time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time)
on any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not later than
ten business days after such date as shall be agreed upon by the Global
Coordinator and the Company and the Selling Shareholders (such time and date of
payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company and the
Selling Shareholders, on each Date of Delivery as specified in the notice from
the Global Coordinator to the Company and the Selling Shareholders.
Payment shall be made to the Company and the Selling Shareholders by
wire transfer of immediately available funds to bank accounts designated by the
Company and the Custodian pursuant to each Selling Shareholder's International
Power of Attorney and Custody Agreement, as the case may be, against delivery to
the International Managers of certificates for the International Securities to
be purchased by them. Xxxxxxx Xxxxx, individually and not as representative of
the International Managers, may (but shall not be obligated to) make payment of
the purchase price for the Initial International Securities or the International
Option Securities, if any, to be purchased by any International Manager whose
funds have not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such
International Manager from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
International Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the International
Managers may request in writing at least one full business day before the
Closing Time or the relevant Date of Delivery, as the case may be. The
certificates for the Initial International Securities and the International
Option Securities, if any, will be made available for examination and packaging
by the International Managers in The City of New York not later than 10:00 A.M.
(Eastern time) on the business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be.
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Section 3. Covenants of the Company. The Company covenants with each
International Manager as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 3(b), will comply with the
requirements of Rule 430A or Rule 434, as applicable, and will notify the Global
Coordinator immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or any supplement to the Prospectuses or any amended Prospectuses shall have
been filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectuses or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or, when known to the Company, threatening of any proceedings for
any of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event that it
was not, it will promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Global
Coordinator notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term Sheet
or any amendment, supplement or revision to either the prospectus included in
the Registration Statement at the time it became effective or to the
Prospectuses, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Global Coordinator with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Global Coordinator or
counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the International Managers and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all consents and
certificates of experts. The copies of the Registration Statement and each
amendment thereto furnished to the International Managers will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to each International Manager, without charge,
during the period when the International Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the International
Prospectus (as
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amended or supplemented) as such International Manager may reasonably request.
The International Prospectus and any amendments or supplements thereto furnished
to the International Managers will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement, the U.S. Purchase Agreement and in the Prospectuses. If at any time
when a prospectus is required by the 1933 Act to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the reasonable opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement or amend or
supplement any Prospectus in order that the Prospectuses will not include any
untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of such counsel, at any such time
to amend the Registration Statement or amend or supplement any Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectuses comply with such requirements, and the Company will furnish to the
International Managers such number of copies of such amendment or supplement as
the International Managers may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best
efforts, in cooperation with the International Managers, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Global Coordinator
may designate and to maintain such qualifications in effect for a period of not
less than one year from the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement; provided, however, that
the Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the Registration
Statement and any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds
received by it from the sale of the Securities in the manner specified in the
Prospectuses under "Use of Proceeds".
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(i) Listing. The Company will use its best efforts to effect the
listing of the Securities on the New York Stock Exchange and maintain such
listing on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq Stock Market.
(j) Restriction on Sale of Securities. During a period of 90 days
from the date of the Prospectuses, the Company will not, without the prior
written consent of the Global Coordinator, (i) directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any share of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
file any registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Securities to be sold hereunder or under the
U.S. Purchase Agreement, (B) any shares of Common Stock issued by the Company
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof and referred to in the Prospectuses, (C) any
shares of Common Stock issued or options to purchase Common Stock granted
pursuant to existing employee benefit plans of the Company referred to in the
Prospectuses or (D) any shares of Common Stock issued pursuant to any
non-employee director stock plan or dividend reinvestment plan.
(k) Reporting Requirements. The Company, during the period when
the Prospectuses are required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the 1934
Act Regulations.
Section 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters and the transfer of
the Securities between the U.S. Underwriters and the International Managers,
(iv) the fees and disbursements of the Company's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectuses and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
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Survey and any supplement thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Securities and (x) the fees and expenses
incurred in connection with the listing of the Securities on the New York Stock
Exchange.
(b) Expenses of the Selling Shareholders. The Selling
Shareholders, severally and not jointly, will pay all expenses incident to the
performance of their respective obligations under, and the consummation of the
transactions contemplated by this Agreement, including (i) any stamp duties,
capital duties and stock transfer taxes, if any, payable upon the sale of the
Securities to the International Managers, and their transfer between the
International Managers pursuant to an agreement between such International
Managers, and (ii) the fees and disbursements of their respective counsel and
accountants.
(c) Termination of Agreement. If this Agreement is terminated by
the International Managers in accordance with the provisions of Section 5(q) or
Section 9(a)(i) hereof, the Company shall reimburse the International Managers
for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
(d) Allocation of Expenses. The provisions of this Section shall
not affect any agreement that the Company and the Selling Shareholders may make
for the sharing of such costs and expenses.
Section 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company and the Selling
Shareholders contained in Section 1 hereof or in certificates of any officer of
the Company or any subsidiary of the Company or on behalf of any Selling
Shareholder delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Company. At Closing Time, the
International Managers shall have received the favorable opinion, dated as of
Closing Time, of Holland & Knight LLP,
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counsel for the Company, in form and substance satisfactory to counsel for the
Underwriters, and to the effect set forth in Exhibit A hereto and to such
further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for the Selling Shareholders. At Closing
Time, the International Managers shall have received the favorable opinion,
dated as of Closing Time, of [[!]], counsel for the Selling Shareholders, in
form and substance satisfactory to counsel for the Underwriters, and to the
effect set forth in Exhibit B hereto and to such further effect as counsel to
the Underwriters may reasonably request.
(d) Opinion of Counsel for Non-U.S. Subsidiaries. At Closing Time,
the International Managers shall have received the favorable opinion, dated as
of Closing Time, of [[!]], counsel for the Company's non-U.S. Subsidiaries, in
form and substance satisfactory to counsel for the Underwriters, and to the
effect set forth in Exhibit C hereto and to such further effect as counsel to
the Underwriters may reasonably request.
(e) [Opinion of Patent Counsel for Company. At Closing Time, the
International Managers shall have received the favorable opinion, dated as of
Closing Time, of [!], special patent counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, and to the effect set
forth in Exhibit D hereto and to such further effect as counsel to the
Underwriters may reasonably request.]
(f) Opinion of Counsel for Underwriters. At Closing Time, the
International Managers shall have received the favorable opinion, dated as of
Closing Time, of Xxxxx & Xxxx LLP, counsel for the Underwriters, with respect to
the matters set forth in clauses (i), (iii), (vi), (vii) (solely as to
preemptive or other similar rights arising by operation of law or under the
charter or by-laws of the Company), (ix) through (xi), inclusive, (xiii), (xv)
(solely as to the information incorporated by reference into the Prospectuses
regarding the description of Company's Common Stock) and the penultimate
paragraph of Exhibit A hereto. In giving such opinion such counsel may rely, as
to all matters governed by the laws of jurisdictions other than the law of the
State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the International Managers. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(g) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
International Managers shall have received a certificate of the President or a
Vice President of the Company and of the chief financial or chief accounting
officer of the Company, dated as of Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all
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conditions on its part to be performed or satisfied at or prior to Closing Time,
and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(h) Certificate of Selling Shareholders. At Closing Time, the
International Managers shall have received a certificate of an Attorney-in-Fact
on behalf of each Selling Shareholder, dated as of Closing Time, to the effect
that (i) the representations and warranties of each Selling Shareholder
contained in Section 1(b) hereof are true and correct in all respects with the
same force and effect as though expressly made at and as of Closing Time and
(ii) each Selling Shareholder has complied in all material respects with all
agreements and all conditions on its part to be performed under this Agreement
at or prior to Closing Time.
(i) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the International Managers shall have received from KPMG LLP a
letter dated such date, in form and substance satisfactory to them, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectuses.
(j) Bring-down Comfort Letter. At Closing Time, the International
Managers shall have received from KPMG LLP a letter, dated as of Closing Time,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (i) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to Closing
Time.
(k) Approval of Listing. At Closing Time, the Securities shall
have been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(l) No Objection. The NASD has confirmed that it has not raised
any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(m) Lock-up Agreements. At the date of this Agreement, the
International Managers shall have received an agreement substantially in the
form of Exhibit E to the U.S. Purchase Agreement signed by the persons listed on
Schedule E hereto.
(n) Purchase of Initial U.S. Securities. Contemporaneously with
the purchase by the International Managers of the Initial International
Securities under this Agreement, the U.S. Underwriters shall have purchased the
Initial U.S. Securities under the U.S. Purchase Agreement.
(o) Conditions to Purchase of International Option Securities. In
the event that the International Managers exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the International Option
Securities, the representations and warranties of the Company and the Selling
Shareholders contained herein and the statements in any certificates furnished
by the Company, any subsidiary of the Company or the Selling Shareholders
hereunder shall be true and correct as of each Date of Delivery and, at the
relevant Date of Delivery, the International Managers shall have received:
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(i) Officers' Certificate. A certificate, dated such Date
of Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(g) hereof remains true and correct as of such Date of
Delivery.
(ii) Certificate of Selling Shareholders. A certificate,
dated such Date of Delivery, of an Attorney-in-Fact on behalf of each
Selling Shareholder confirming that the certificate delivered at
Closing Time pursuant to Section 5(h) remains true and correct as of
such Date of Delivery.
(iii) Opinion of Counsel for Company. The favorable opinion
of Holland & Knight LLP, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the International Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(b) hereof.
(iv) Opinion of Counsel for the Selling Shareholders. The
favorable opinion of [!], counsel for the Selling Shareholders, in
form and substance satisfactory to counsel for the Underwriters, dated
such Date of Delivery, relating to the International Option Securities
to be purchased on such Date of Delivery and otherwise to the same
effect as the opinion required by Section 5(c) hereof.
(v) Opinion of Counsel for the Company's Non-U.S.
Subsidiaries. The favorable opinion of [!], counsel for the Company's
Non-U.S. Subsidiaries, in form and substance satisfactory to counsel
for the Underwriters, dated such Date of Delivery, relating to the
International Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(d) hereof.
(vi) Opinion of Patent Counsel for the Company. The
favorable opinion of [!], patent counsel for the Company, in form and
substance satisfactory to counsel for the Underwriters, dated such Date
of Delivery, relating to the International Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(e) hereof.
(vii) Opinion of Counsel for Underwriters. The favorable
opinion of Xxxxx & Xxxx LLP, counsel for the Underwriters, dated such
Date of Delivery, relating to the International Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as
the opinion required by Section 5(f) hereof.
(viii) Bring-down Comfort Letter. A letter from KPMG LLP, in
form and substance satisfactory to the International Managers and dated
such Date of Delivery, pursuant to Section 5(j) hereof, except that the
"specified date" in the letter furnished pursuant to this paragraph
shall be a date not more than five days prior to such Date of Delivery.
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(p) Additional Documents. At Closing Time and at each Date of
Delivery counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the
International Managers and counsel for the Underwriters.
(q) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of International
Option Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several International Managers to purchase the relevant
Option Securities may be terminated by the International Managers by notice to
the Company at any time at or prior to Closing Time or such Date of Delivery, as
the case may be, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections 1, 6, 7
and 8 shall survive any such termination and remain in full force and effect.
Section 6. Indemnification.
(a) Indemnification of International Managers. The Company and the
Selling Shareholders, jointly and severally, agree to indemnify and hold
harmless each International Manager and each person, if any, who controls any
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), including the
Rule 430A Information and the Rule 434 Information, if applicable, or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectuses (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company; and
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(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
International Manager or by any U.S. Underwriter through the U.S.
Representatives expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the International
Prospectus (or any amendment or supplement thereto); and provided further that
the Company will not be liable to any International Manager with respect to any
preliminary International prospectus to the extent that the Company shall
sustain the burden of proving that any such loss, liability, claim, damage or
expense resulted from the fact that such International Manager, in contravention
of a requirement of applicable law, sold Securities to a person to whom such
International Manager failed to send or give, at or prior to the Closing Date, a
copy of the International Prospectus (or the International Prospectus as amended
or supplemented) if (i) the Company has previously furnished copies thereof
(sufficiently in advance of the Closing Date and in sufficient quantity to allow
for distribution by the Closing Date) to the International Managers and the
loss, liability, claim, damage or expense of such International Manager resulted
from an untrue statement or omission of a material fact contained in or omitted
from the preliminary International prospectus which was corrected in the
International Prospectus (or the International Prospectus as amended or
supplemented) prior to the Closing Date and such International Prospectus was
required by law to be delivered at or prior to the written confirmation of sale
to such person and (ii) such failure to give or send such International
Prospectus by the Closing Date to the party or parties asserting such loss,
liability, claim, damage or expense would have constituted the sole defense to
the claim asserted by such person.
(b) Indemnification of Company, Directors and Officers and Selling
Shareholders. Each International Manager severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and
each Selling Shareholder against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary International prospectus or the
International Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
International Manager expressly for use in the Registration Statement (or any
amendment thereto) or such
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preliminary prospectus or the International Prospectus (or any amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for the fees and expenses of counsel
which the indemnifying party is required to pay pursuant to Section 6(a)(iii)
and Section 6(b) hereof, such indemnifying party agrees that it shall be liable
for any settlement of the nature contemplated by Section 6(a)(ii) effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
as required hereunder in accordance with such request prior to the date of such
settlement.
(e) Limitation on Indemnification by Selling Shareholders. No
Selling Shareholder shall be responsible pursuant to this Section 6 for the
payment of an amount which exceeds an amount equal to (i) the purchase price per
share for the International Securities to be paid by the several International
Managers set forth in Schedule C hereto multiplied by (ii) the number of
International Securities sold to the International Managers by such Selling
Shareholder hereunder.
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(f) Other Agreements with Respect to Indemnification. The
provisions of this Section shall not affect any agreement among the Company and
the Selling Shareholders with respect to indemnification.
Section 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the International Managers on the other
hand from the offering of the Securities pursuant to this Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Shareholders on the one hand and of the International Managers on
the other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company and the Selling
Shareholders on the one hand and the International Managers on the other hand in
connection with the offering of the International Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the International Securities pursuant to this
Agreement (before deducting expenses) received by the Company and the Selling
Shareholders and the total underwriting discount received by the International
Managers, in each case as set forth on the cover of the International
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of the International
Securities as set forth on such cover.
The relative fault of the Company and the Selling Shareholders on the
one hand and the International Managers on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Selling Shareholders
or by the International Managers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company, the Selling Shareholders and the International Managers
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the International
Managers were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
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Notwithstanding the provisions of this Section 7, no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the International Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such International Manager has otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, and each Selling Shareholder shall have the same rights to
contribution as the Company. The International Managers' respective obligations
to contribute pursuant to this Section 7 are several in proportion to the number
of Initial International Securities set forth opposite their respective names in
Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Shareholders with respect to contribution.
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries or the Selling Shareholders submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any International Manager or controlling person, or by or on
behalf of the Company or the Selling Shareholders, and shall survive delivery of
the Securities to the International Managers.
Section 9. Termination of Agreement.
(a) Termination; General. The International Managers may terminate
this Agreement, by notice to the Company and the Selling Shareholders, at any
time at or prior to Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the International Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the International Managers, impracticable
to market the Securities or to enforce contracts for the
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sale of the Securities, or (iii) if trading in any securities of the Company has
been suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a banking moratorium has
been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
Section 10. Default by One or More of the International Managers. If
one or more of the International Managers shall fail at Closing Time or a Date
of Delivery to purchase the Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the non-defaulting
International Managers shall have the right, within 24 hours thereafter, to make
arrangements to purchase all, but not less than all, of the Defaulted Securities
in such amounts as may be agreed upon and upon the terms herein set forth; if,
however, the non-defaulting International Managers shall not have completed such
arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed
10% of the number of International Securities to be purchased on such
date, each of the non-defaulting International Managers shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting International Managers, or
(ii) if the number of Defaulted Securities exceeds 10% of
the number of International Securities to be purchased on such date,
this Agreement or, with respect to any Date of Delivery which occurs
after the Closing Time, the obligation of the International Managers to
purchase and of the Company to sell the Option Securities to be
purchased and sold on such Date of Delivery shall terminate without
liability on the part of any non-defaulting International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after the
Closing Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company and the Selling Shareholders
to sell the relevant International Option Securities, as the case may be, either
(i) the non-defaulting International Managers or (ii) the Company and any
Selling Shareholder shall have the right to postpone Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven
days in order to effect any required changes in
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the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "International Manager" includes any
person substituted for an International Manager under this Section 10.
Section 11. Default by one or more of the Selling Shareholders or the
Company.
(i) If a Selling Shareholder shall fail at Closing Time
or at a Date of Delivery to sell and deliver the number of Securities
which such Selling Shareholder or Selling Shareholders are obligated to
sell hereunder, and the remaining Selling Shareholder does not exercise
the right hereby granted to increase, pro rata or otherwise, the number
of Securities to be sold by him hereunder to the total number to be
sold by all Selling Shareholders as set forth in Schedule B hereto,
then the International Managers may, by notice from the International
Managers to the Company and the non-defaulting Selling Shareholder,
either (a) terminate this Agreement without any liability on the fault
of any non-defaulting party except that the provisions of Sections 1,
4, 6, 7 and 8 shall remain in full force and effect or (b) elect to
purchase the Securities which the non-defaulting Selling Shareholder
and the Company have agreed to sell hereunder. No action taken pursuant
to this Section 11 shall relieve any Selling Shareholder so defaulting
from liability, if any, in respect of such default.
In the event of a default by any Selling Shareholder as referred to in
this Section 11, each of the International Managers, the Company and the
non-defaulting Selling Shareholder shall have the right to postpone Closing Time
or Date of Delivery for a period not exceeding seven days in order to effect any
required change in the Registration Statement or Prospectus or in any other
documents or arrangements.
(ii) If the Company shall fail at Closing Time or at the
Date of Delivery to sell the number of Securities that it is obligated
to sell hereunder, then this Agreement shall terminate without any
liability on the part of any non-defaulting party; provided, however,
that the provisions of Sections 1, 4, 6, 7 and 8 shall remain in full
force and effect. No action taken pursuant to this Section shall
relieve the Company from liability, if any, in respect of such default.
Section 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Global Coordinator at Xxxxx
Xxxxx, Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, attention of
[!]; and notices to the Company shall be directed to it at 00000 Xxxxxxxxx
Xxxxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, attention of General Counsel.
Section 13. Parties. This Agreement shall each inure to the benefit of
and be binding upon the International Managers, the Company and the Selling
Shareholders and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the International Managers, the Company and the Selling
Shareholders and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or
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equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
International Managers, the Company and the Selling Shareholders and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any International
Manager shall be deemed to be a successor by reason merely of such purchase.
Section 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
Section 15. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the International Managers and the Company in accordance with its terms.
Very truly yours,
JABIL CIRCUIT, INC.
By
--------------------------------------------
Title:
XXXXXXX X. XXXXXX RESIDUAL TRUST
By
--------------------------------------------
Title:
CHEYENNE HOLDINGS LIMITED PARTNERSHIP
By
--------------------------------------------
Title:
TASAN LIMITED PARTNERSHIP
By
--------------------------------------------
Title:
30
35
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX INTERNATIONAL
XXXXXXXXX, LUFKIN & XXXXXXXX INTERNATIONAL
SALOMON BROTHERS INTERNATIONAL LIMITED
X.X. XXXXXXXXX, XXXXXX
XXXXXX XXXXXX PARTNERS LLC
BY: XXXXXXX XXXXX INTERNATIONAL
By
-----------------------------------------------
Authorized Signatory
31
36
SCHEDULE A
Number of
Initial International
Name of International Manager Securities
----------------------------- ----------
Xxxxxxx Xxxxx International......................
Xxxxxxxxx, Lufkin & Xxxxxxxx International
Salomon Brothers International Limited
X.X. Xxxxxxxxx, Xxxxxx
Xxxxxx Xxxxxx Partners LLC
-----------------------
Total............................................ 1,500,000
=========
Sch X-0
00
XXXXXXXX X
Number of Initial Maximum Number of
International International Option
Securities to be Sold Securities to Be Sold
--------------------- ---------------------
JABIL CIRCUIT, INC.
Xxxxxxx X. Xxxxxx Residual Trust
Cheyenne Holdings Limited Partnership
Tasan Limited Partnership
Total............................... 1,500,000 225,000
Sch B-1
38
SCHEDULE C
JABIL CIRCUIT, INC.
1,500,000 Shares of Common Stock
(Par Value $.001 Per Share)
1. The initial public offering price per share for the
Securities, determined as provided in said Section 2, shall be $[!].
2. The purchase price per share for the International Securities
to be paid by the several International Managers shall be $[!], being an
amount equal to the initial public offering price set forth above less $[!]
per share; provided that the purchase price per share for any International
Option Securities purchased upon the exercise of the over-allotment option
described in Section 2(b) shall be reduced by an amount per share equal to any
dividends or distributions declared by the Company and payable on the Initial
International Securities but not payable on the International Option Securities.
Sch C-1
39
INTERNATIONAL PURCHASE AGREEMENT
SCHEDULE D
[List of Subsidiaries]
COUNTRY OF
NAME OF ENTITY INCORPORATION % OF OWNERSHIP
--------------------------------------- ------------- --------------
Jabil Circuit of Michigan, Inc. Michigan 100% Owned by Jabil Circuit, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Metro North Technology Park
Xxxxxx Xxxxx, Xxxxxxxx 00000
Jabil Circuit de Mexico, S.A. de C.V. Mexico >99% Owned by Jabil Circuit, Inc.
Xxxxxxx Xxxxxxxxxx Xx. 0000 <1% Owned by Xxxxxxx X. Xxxxxx
Xxxxx de Zapopan 45130 (49,999 Shares Owned by Jabil Circuit, Inc.)
Zapopan, Jalisco, Mexico (1 Share Owned by Xxxxxxx X. Xxxxxx)
Jabil Circuit Sdn Bhd Malaysia 100% Owned by Jabil Circuit, Inc.
56, Hilir Sungai Keluang1
Bayan Xxxxx Xxxxxxxxxx Xxxx, Xxxxx 0
00000 Xxxxxx, Xxxxxxxx
Jabil Circuit Limited Scotland 100% Owned by Jabil Circuit, Inc.
Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxx XX00 OTJ
United Kingdom
Jabil Circuit S.r.l. Italy 95% Owned by Jabil Circuit Limited
Viale Europa, 2 5% Owned by Jabil Circuit, Inc.
24040 Stezzano
Bergamo
Italy
Jabil Circuit Foreign Sales Corporation Barbados 100% Owned by Jabil Circuit, Inc.
Xxxxxxx Business Services Ltd.
Xxxxxx Church, Barbados
Jabil Partners Scotland 50% Owned by Jabil Circuit, Inc.
(United Kingdom Partnership) 50% Owned by Jabil Circuit of Michigan, Inc.
Xxxxxxx Xxxx Xxxxx
Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxx XX00 OTJ
United Kingdom
Jabil Luxembourg, S.a.r.l. Luxembourg 100% Owned by Jabil Partners
0 Xxxxxxxxx xx xx Xxxxx
X-0000 Xxxxxxxxxx
Sch D-1
40
SCHEDULE E
[List of persons and entities
subject to lock-up]
Xxxxxxx X. Xxxxxx, individually and as a signatory for the following
stockholders
Xxxxxxx X. Xxxxxx Residual Trust
Cheyenne Holdings Limited Partnership
Eagle's Wing Foundation
Xxxxxx X. Xxxxxxxx, individually and as a signatory for the following
stockholders
Xxxxxxx X. Xxxxxx Residual Trust
Morean Limited Partnership
Xxxxxx Xxxxxxxx Revocable Trust
Xxxxxx X. Xxxxxxx, individually and as a signatory for the following
stockholders
TASAN Limited Partnership
Life's Requite, Inc.
Xxxxxx X. Xxxx
Xxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Main
Xxxxx Xxxxx
Xxxxxx X. Xxxxx
Xxxx Xxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxx Xxxxxxxxxxx
Xxxxxx X.X. Xxxxxxxxx
Sch E-1
41
EXHIBIT A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the
International Purchase Agreement and the U.S. Purchase Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectuses in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the International Purchase Agreement and the U.S. Purchase Agreement
or pursuant to reservations, agreements or employee benefit plans referred to in
the Prospectuses or pursuant to the exercise of convertible securities or
options referred to in the Prospectuses); the shares of issued and outstanding
capital stock have been duly authorized and validly issued and are fully paid
and non-assessable; and none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(v) The Securities to be purchased by the International Managers
and the U.S. Underwriters from the Company have been duly authorized for
issuance and sale to the Underwriters pursuant to the International Purchase
Agreement and the U.S. Purchase Agreement, respectively, and, when issued and
delivered by the Company pursuant to the International Purchase Agreement and
the U.S. Purchase Agreement, respectively, against payment of the consideration
set forth in the U.S. Purchase Agreement and the International Purchase
Agreement, will be validly issued and fully paid and non-assessable and no
holder of the Securities is or will be subject to personal liability by reason
of being such a holder.
(vi) The issuance of the Securities is not subject to the
preemptive or other similar rights of any securityholder of the Company.
(vii) Each Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectuses and
is duly qualified as a foreign corporation to
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42
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to the best of our
knowledge, is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any Subsidiary was
issued in violation of the preemptive or similar rights of any securityholder of
such Subsidiary.
(viii) The International Purchase Agreement and the U.S. Purchase
Agreement have been duly authorized, executed and delivered by the Company.
(ix) The Registration Statement, including any Rule 462(b)
Registration Statement, has been declared effective under the 1933 Act; any
required filing of the Prospectuses pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to the best of
our knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(x) The Registration Statement, including any Rule 462(b)
Registration Statement, the Rule 430A Information and the Rule 434 Information,
as applicable, the Prospectuses excluding the documents incorporated by
reference therein, and each amendment or supplement to the Registration
Statement and the Prospectuses, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the financial statements and supporting schedules included therein or omitted
therefrom, as to which we need express no opinion) complied as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(xi) The documents incorporated by reference in the Prospectuses
(other than the financial statements and supporting schedules included therein
or omitted therefrom, as to which we need express no opinion), when they were
filed with the Commission, complied as to form in all material respects with the
requirements of the 1934 Act and the rules and regulations of the Commission
thereunder.
(xii) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory requirements,
with any applicable requirements of the charter and by-laws of the Company and
the requirements of the New York Stock Exchange.
(xiii) To the best of our knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation, to which the
Company or any subsidiary is a party, or to which the property of the Company or
any subsidiary is subject, before or brought by any court or governmental agency
or body, domestic or foreign, which might reasonably
A-2
43
be expected to result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or assets thereof or
the consummation of the transactions contemplated in the International Purchase
Agreement and U.S. Purchase Agreement or the performance by the Company of its
obligations thereunder.
(xiv) The information in, or incorporated by reference into, the
Prospectuses regarding the description of the Company's common stock and under
the captions entitled "Business--Facilities", "Business--Legal Proceedings",
"Certain Federal Income Tax Considerations" and "[!]" and in the Registration
Statement under Item 15, to the extent that it constitutes matters of law,
summaries of legal matters, the Company's charter and bylaws or legal
proceedings, or legal conclusions, has been reviewed by us and is correct in all
material respects; and the opinion of such firm set forth under "Certain Federal
Income Tax Considerations" is confirmed.
(xv) To the best of our knowledge, there are no statutes or
regulations that are required to be described in the Prospectuses that are not
described as required.
(xvi) All descriptions in the Prospectuses of contracts and other
documents to which the Company or its subsidiaries are a party are accurate in
all material respects; to the best of our knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(xvii) To the best of our knowledge, neither the Company nor any
subsidiary is in violation of its charter or by-laws and no default by the
Company or any subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectuses or filed or incorporated by reference as an exhibit to the
Registration Statement.
(xviii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, (other than under the 1933 Act and the
1933 Act Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states, as to which we need express
no opinion) is necessary or required in connection with the due authorization,
execution and delivery of the International Purchase Agreement and the U.S.
Purchase Agreement or for the offering, issuance, sale or delivery of the
Securities.
(xix) The execution, delivery and performance of the International
Purchase Agreement and the U.S. Purchase Agreement and the consummation of the
transactions contemplated in the International Purchase Agreement, the U.S.
Purchase Agreement and in the Registration Statement (including the issuance and
sale of the Securities, and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under
A-3
44
the caption "Use Of Proceeds") and compliance by the Company with its
obligations under the International Purchase Agreement and the U.S. Purchase
Agreement do not and will not, whether with or without the giving of notice or
lapse of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 1(a)(xi) of the Purchase Agreements)
under or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any subsidiary pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to us, to which the Company or
any subsidiary is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any subsidiary is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or by-laws of
the Company or any subsidiary, or any applicable law, statute, rule, regulation,
judgment, order, writ or decree, known to us, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their respective properties, assets or
operations.
(xx) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the 0000
Xxx.
(xxi) To the best of our knowledge and except for such rights as
have been duly waived or described in the Prospectuses, there are no persons
with registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act.
Nothing has come to our attention that would lead us to believe that
the Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which we need make no statement),
at the time such Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectuses or any amendment or supplement thereto
(except for financial statements and schedules and other financial data included
or incorporated by reference therein or omitted therefrom, as to which we need
make no statement), at the time the Prospectuses were issued, at the time any
such amended or supplemented prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
A-4
45
EXHIBIT B
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(c)
[1] No filing with, or consent, approval, authorization, license, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, (other than the issuance of
the order of the Commission declaring the Registration Statement
effective and such authorizations, approvals or consents as may be
necessary under state securities laws, as to which we need express no
opinion) is necessary or required to be obtained by the Selling
Shareholders for the performance by each Selling Shareholder of its
obligations under the U.S. Purchase Agreement and the International
Purchase Agreement or in the International Power of Attorney and
Custody Agreement, or in connection with the offer, sale or delivery of
the Securities.
[2] Each International Power of Attorney and Custody Agreement has been
duly executed and delivered by the respective Selling Shareholders
named therein and constitutes the legal, valid and binding agreement of
such Selling Shareholder.
[3] The U.S. Purchase Agreement and the International Purchase Agreement
have been duly authorized, executed and delivered by or on behalf of
each Selling Shareholder.
[4] The Attorney-in-Fact has been duly authorized by the Selling
Shareholders to deliver the Securities on behalf of the Selling
Shareholders in accordance with the terms of the U.S. Purchase
Agreement and the International Purchase Agreement.
[5] The execution, delivery and performance of the U.S. Purchase Agreement,
the International Purchase Agreement and the International Power of
Attorney and Custody Agreement and the sale and delivery of the
Securities and the consummation of the transactions contemplated in the
U.S. Purchase Agreement and the International Purchase Agreement and in
the Registration Statement and compliance by the Selling Shareholders
with its obligations under the U.S. Purchase Agreement and the
International Purchase Agreement have been duly authorized by all
necessary action on the part of the Selling Shareholders and do not and
will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default under
or result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Securities or any property or assets of the
Selling Shareholders pursuant to, any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, license, lease or other
instrument or agreement to which any Selling Shareholder is a party or
by which they may be bound, or to which any of the property or assets
of the Selling Shareholders may be subject nor will such action result
in any violation of the provisions of the charter or by-laws of the
Selling Shareholders, if applicable, or any law, administrative
regulation, judgment or order of any governmental agency or body or any
administrative or court decree having jurisdiction over such Selling
Shareholder or any of its properties.
B-1
46
[6] To the best of our knowledge, each Selling Shareholder has valid and
marketable title to the Securities to be sold by such Selling
Shareholder pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement, free and clear of any pledge, lien,
security interest, charge, claim, equity or encumbrance of any kind,
and has full right, power and authority to sell, transfer and deliver
such Securities pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement. By delivery of a certificate or
certificates therefor such Selling Shareholder will transfer to the
U.S. Underwriters and International Managers who have purchased such
Securities pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement (without notice of any defect in the
title of such Selling Shareholder and who are otherwise bona fide
purchasers for purposes of the Uniform Commercial Code) valid and
marketable title to such Securities, free and clear of any pledge,
lien, security interest, charge, claim, equity or encumbrance of any
kind.
[7] Nothing has come to our attention that would lead us to believe that
the Registration Statement or any amendment thereto, including the Rule
430A Information and Rule 434 Information (if applicable), (except for
financial statements and schedules and other financial data included
therein or omitted therefrom, as to which we need make no statement),
at the time such Registration Statement or any such amendment became
effective, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectuses or
any amendment or supplement thereto (except for financial statements
and schedules and other financial data included therein or omitted
therefrom, as to which we need make no statement), at the time the
Prospectuses were issued, at the time any such amended or supplemented
prospectuses were issued or at the Closing Time, included or includes
an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
B-2
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EXHIBIT C
FORM OF OPINION OF COUNSEL FOR THE COMPANY'S NON-U.S. SUBSIDIARIES
TO BE DELIVERED PURSUANT TO SECTION 5(d)
[1] The Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of [name of the jurisdiction of
its incorporation], has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect.
[2] Except as otherwise disclosed in the Registration Statement, all of the
issued and outstanding capital stock of the Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and, to the
best of our knowledge, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
[3] None of the outstanding shares of capital stock of the Subsidiary was
issued in violation of the preemptive or similar rights of any of its
securityholders.
[4] To the best of our knowledge, there is no pending or threatened any action,
suit, proceeding, inquiry or investigation, to which the Subsidiary is a
party, or to which the property of the Subsidiary is subject, before or
brought by any court or governmental agency or body, domestic or foreign,
which might reasonably be expected to result in a Material Adverse Effect,
or which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the transactions
contemplated in the U.S. Purchase Agreement and International Purchase
Agreement.
[5] To the best of our knowledge, the Subsidiary is not in violation of its
charter or by-laws and no default by the Subsidiary exists in the due
performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Subsidiary is a party.
This opinion is limited to matters pertaining to the laws of [name of
jurisdiction].
C-1
48
EXHIBIT D
FORM OF OPINION OF PATENT COUNSEL FOR THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(e)
D-1
